Blowing the whistle: An American tradition
Written by: David Weber
As originally published in The Hill, November 4, 2017
This coming week, it will be exactly 241 years since the Frigate Warren was anchored off Providence, R.I. Warren was the first of the 13 frigates authorized by the Continental Congress after we declared our independence from England. The captain of the Warren also happened to be the commander in chief of our fledgling Navy, Commodore Esek Hopkins.
We were at total war, when about 10 naval and marine officers — and one midshipman (a student) — met below decks. They met to discuss witnessing Commodore Hopkins torturing British prisoners. They met in secret, as whistleblowers were as welcome in colonial times as they are today. Worse yet, the Constitution did not exist, there was no freedom of speech, or even the right to petition the Continental Congress. All of them, to a man, would have been tried as traitors for being in open, armed rebellion.
Hopkins “treated prisoners in the most inhuman and barbarous manner,” they would later write in their petition. These naval and marine officers, and one midshipman, were, to our knowledge, the first whistleblowers of our new nation.
They formed a plan: Capt. John Grannis of the U.S. Marine Corps would go overboard without permission, known today as AWOL, to deliver their whistleblower report. Had his actions been detected he could have been jailed or executed, for a service member fleeing during war was a capital offense. He could also have been captured, as the British had occupied Rhode Island’s Newport, very close to where Grannis would have to travel.
Their concerns of detection or reprisal by Hopkins were legitimate: the man they were reporting was not only the commander of the entire Navy but from a well-known family. His brother had served as governor of Rhode Island, signed the Declaration of Independence, and was a member of the Continental Congress. They had no ability to know how this report of wrongdoing would play out. Yet over the gunwale Capt. Grannis went, to York, Pa., where Congress was then in session. In an era before superchargers and interstates, it took time to travel, but travel Capt. Grannis did.
Capt. Grannis arrived in York, and the whistleblower report was received. After congressional investigation, on March 26, 1777, Congress stripped Hopkins of command:
Congress took into consideration the paper containing charges and complaints against Commodore Hopkins; Whereupon,
Resolved, That Esek Hopkins be immediately, and he hereby is, suspended from his command in the American navy.
Like we experience today, unfortunately, their whistleblower story did not have a happy ending. There was immediate reprisal: Hopkins filed criminal charges in Rhode Island, his preferred venue, against those crew remaining in the state of Rhode Island: midshipman Samuel Shaw and Lt. Richard Marven. They were jailed, and held without bail.
On July 23, 1778, Shaw and Marven again petitioned Congress, stating they were “arrested for doing what [we] then believed and still believe was nothing but [our] duty.”
In a demonstration of congressional efficiency (which we would likely not see today), just seven days later, Congress enacted what we believe to be our nation’s first whistleblower protection law. The statute spoke not only to the duties of federal employees to report wrongdoing but provided for their defense. Remember that our fledgling nation had insufficient funds to even shoe Washington’s Army in wintertime; yet Congress chose to defend the whistleblowers.
Congress also ordered the production of documents needed by Shaw and Marven’s attorney for their defense, without the need for state secrecy — compare that to what we just saw from the Trump administration with regards to the decades-old records of former President John F. Kennedy.
Resolved, That it is the duty of all persons in the service of the United States, as well as all other the inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states. . . .
Resolved, That the reasonable expenses of defending the said suit be defrayed by the United States.
Ordered, That the secretary of Congress furnish the petitioners with attested copies of the records of Congress, so far as they relate to the appointment of Esek Hopkins, Esq. to any command in the continental navy, and his dismission from the same…..
Midshipman Shaw and Lt. Marven, with congressional support, were then acquitted by jury. On May 22, 1779, Congress appropriated $1,418 to reimburse their attorney, and directed one “Mr.Sam.Adams” to serve as the federal fiscal agent.
Shaw and Marven never became famous, they were never invited to be visiting fellows at Harvard, and even to this day do not have complete Wikipedia pages. Yet their experience was uniquely American.
Our system of government was created to allow dissent. Teaching undergraduate and MBA courses in ethics, I encounter students who have terrible reluctance to do the right thing: they see the obvious consequences that befall those who do. Yet we have many stories of those who have raised their hand (including this author) despite the personal consequences of doing so. Some of us prevail.
From Esek Hopkins, the Pentagon Papers, the war on terror, Enron, WorldCom, Madoff, Manning, Snowden, Russian interference, and many more in the future, Americans continue to report wrongdoing, despite the potential consequences. Why? History plainly repeats itself, and history will repeat itself again. As we enter this chilly November, the lessons of Midshipman Shaw and Lt. Marven, and the bravery of Capt. Grannis, remain relevant today. We are a nation that believes in doing the right thing, even when it is hard to do.
What will you do?
David P. Weber is a faculty member at the University of Maryland, College Park, at the Robert H. Smith School of Business. He is the former assistant inspector general for investigations at the U.S. Securities and Exchange Commission, the SEC’s chief investigator. He teaches professional and business ethics at the undergraduate and graduate level at the University of Maryland.