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Revolutionary sailors' report of misconduct led to first U.S. whistleblower law

W. Nowland Van Powell painting US Continental Navy ship Alfred via Naval History and Heritage Command
U.S. Continental Navy ship Alfred at its commissioning at Philadelphia on Dec. 3, 1775, captured in this oil painting by W. Nowland Van Powell. America's earliest sailors also were the new nation's first whistleblowers. (Image courtesy Naval History and Heritage Command)

Memorial Day and its surrounding weekend days are to honor those in the armed forces who gave their all to protect us and our country.

But, thank goodness, the ultimate sacrifice isn't required in all cases. Sometimes other forms of protection are just as necessary to protect us and society at large against fraud, waste, and abuse of power.

That's the case in spotlighting wrongdoing. Whistleblowers inside organizations, companies, and government offices are crucial in ensuring that all our civilization's systems work fairly.

So this Memorial Day weekend, let's also salute military whistleblowers who risk their reputations and careers, and sometimes even put their lives in jeopardy when they report wrongdoing.

Early sailors led the way: In fact, U.S. servicemen, specifically sailors in the young Continental Navy, were the first whistleblowers in United States history, according to the National Whistleblower Center (NWC).

Here's their story, as recounted by the NWC.

On Feb. 19, 1777, a group of 10 sailors met aboard the warship USS Warren to discuss their concerns about the incompetence and abuse of British prisoners by the commander in chief of the Continental Navy. Although Commodore Esek Hopkins was well-connected as the highest ranked officer in the Navy and brother to then Governor of Rhode Island, the sailors weren't dissuaded, despite the potential risks to their naval careers.

Motivated by concern for the integrity of the Navy, they petitioned the Continental Congress to express their concerns about their commander, signing personal affidavits alongside their petition. The Continental Congress' Marine Committee finished its investigation and presented its findings to the full body on March 26, 1777.

The commodore was suspended, and ultimately formally removed from the United States Navy on Jan. 2, 1778.

Retaliation led to a new protective law: Hopkins, however, retaliated. He filed a criminal libel suit in Rhode Island against the whistleblowers. Two of the sailors happened to be in Rhode Island and were jailed.

They again took their cases to Congress in July 1778, pleading that they had been "arrested for doing what they then believed and still believe was nothing but their duty."

Later that month, on July 30, 1778, to be exact, and without any recorded dissent, Congress enacted America's first whistleblower protection law. It stated:

 "That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge."

Just as notable, to ensure that the Naval whistleblowers would have excellent legal counsel to fight against the libel charges, and despite the financial hardships of the new republic, Congress also authorized payment for the legal fees of the two jailed, and exonerated, sailors.

The cost of their defense at trial, which they won, was $1,418. Historical records show that a Sam. Adams was directed to make sure their lawyer was paid.

The legal costs of those first whistleblowing sailors, who suffered serious consequences for speaking truth to power centuries ago, and whose efforts prompted the young United States of America's first whistleblower law, earn this holiday weekend's By the Numbers recognition.

Subsequent whistleblower protections: Of course, as the United States grew, its whistleblower laws have been revised. Keeping with this weekend's military theme, here are some notable pieces of legislation.

Congress in 1988 passed the Military Whistleblowers Protection Act. This law made it illegal for the armed forces to retaliate against military personnel for communicating with members of Congress or an Inspector General.

Developments in whistleblower protections then led to the Military Whistleblower Protection Enhancement Act of 2013, allowing whistleblowers claims to be made within one year instead of an abnormally small 60-day period. Most notably, this law expanded protected communications to include issues concerning any violation of law, specifically including those prohibiting rape, sexual assault, and other sexual misconduct under the Uniform Code of Military Justice (UCMJ).

Tax whistleblowers today: Nowadays, whistleblowing is often associated with taxes.

The Internal Revenue Service has a Whistleblower Office, led by the recently appointed new director John Hinman, that pays monetary awards to eligible individuals whose information is used by the IRS.

You can read an overview by the IRS of what happens to a whistleblower claim for an award. Generally, the award percentage depends on several factors, but generally falls between 15 percent and 30 percent of the proceeds collected and attributable to the whistleblower's information.

And, as our world changes, so does whistleblowing. Among the areas Hinman will be tasked with overseeing is possible tipster rewards to help with IRS cryptocurrency tax enforcement.

Taxpayer privacy still paramount: Most recently, the role of tax whistleblowers has been the focus of Republican members of Congress who want answers about how individual tax information of some of the country's richest people got into the hands of the investigative organization ProPublica.

That led to a Government Accountability Office (GAO) report on how the IRS protects filers' information. Spoiler: Not so well in some cases. You can read more in my post, IRS employee misconduct cited in accessing taxpayer accounts.

ProPublica characterized the tax data it received as coming to it through a channel it set up for whistleblowers to anonymously share information. The group said those who passed along the tax material were motivated to show how a lack of resources at the IRS has caused the agency to focus more on auditing the poor than the ultra-rich.

However, privacy of tax data collected by the IRS is paramount under U.S. law. The tax agency's manual says agency officials can only disclose tax information if there is a statutory basis that allows the disclosure, the proper authorization to disclose this information has been granted, and written procedures for making the disclosure exist.

Criminal unauthorized access of taxpayer data by an IRS employee is punishable by a fine of up to $1,000 or up to one year in jail or both, along with the costs of prosecution, as well as termination from the agency. If the access is willful, that's a felony, punishable by a fine of up to $5,000, up to 5 years in jail, or both, plus costs of prosecution. And, of course, loss of job.

Thanks to original military whistleblowers: Still, whistleblower information is valuable in many cases where normal channels do not provide for the outing of and remedying government and private sector violations.

So, on this Memorial Day weekend, we thank those 10 honorable sailors who recognized their duties 245 years ago and gave us our whistleblower laws.

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