Stephen Kohn argues that the Founders were aware of the importance of protecting whistleblowers from the beginning. In response to the case of Esek Hopkins, a Commodore in the American Navy who tortured his British captives and was called out by his subordinates, Congress passed the first "whistleblower protection law."
Later that month, without any recorded dissent, Congress enacted America's first whistle-blower-protection law: “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.”
Congress did not stop there. It wanted to ensure that the whistle-blowers would have excellent legal counsel to fight against the libel charges, and despite the financial hardships of the new republic, it authorized payment for the legal fees of Marven and Shaw.
Congress did not hide behind government secrecy edicts, even though the nation was at war. Instead, it authorized the full release of all records related to the removal of Hopkins. No “state secret” privilege was invoked. The whistle-blowers did not need to use a Freedom of Information Act to obtain documents to vindicate themselves. There was no attempt to hide the fact that whistle-blowers had accused a Navy commander of mistreating prisoners.
As Kohn notes, America was at war and it would have been a simple matter to argue, as many have in recent years, that existential peril trumps legal principle. Yet the British Empire posed a far greater existential threat to the U.S. than al Qaeda ever has or ever will.
This is a very compelling argument, and it's always tempting to reach back to the origins of the United States for principled positions on contentious legal issues. The problem is that there's always a contrary argument--just twenty years later, Congress passed the Alien and Sedition Act, which made it a crime to "publish "false, scandalous, and malicious writing" against the government or its officials." The law lead to a chilling of free speech and to politically motivated prosecutions of journalists and newspaper editors. Hard to have whistleblowers when journalists who publish their complaints can be prosecuted for criticizing the government. Human beings are fickle, and arguing about intent always runs into the thorny problem of conflicting impulses. This is precisely why constitutional interpretation is difficult, and not simply a matter of "reading the Constitution," however effective that is as a talking point.
The principle here works just as well without invoking the intent of America's earliest leaders. It's no coincidence that the issue with Hopkins was torture. Rather than argue over the legality of torture, it's far easier for the government to simply argue that the issues involved are a state secret that can't be adjudicated in public. But a system where "the law is king" cannot exist where the law allows the government to escape accountability by shielding its own illegal actions. The system is not functioning properly if it can easily avoid accountability through secrecy. Yet as a principle, that kind of government impunity is supported by a broad bipartisan consensus among elected officials.
