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  • Walt Brown

The Marital Exception Meets the Islamic State

In recent weeks, Judge Nicholas Garaufis, a federal judge of the Eastern District, ruled that a draft letter an Air Force veteran accused of providing material support to ISIS wrote to his wife was not protected by marital privilege. Marital privilege is based on the policy of encouraging spousal harmony, and preventing spouses from having to implicate, or be implicated, by their spouses. It is separated into two distinct privileges: testimonial and communications. Testimonial privilege allows a spouse to refuse to testify against their defendant spouse. This privilege can only be waived by the witness spouse. Communication privilege protects communications between spouses during the marriage applying to both words and acts intended to be a private communication between the spouse.

In December of 2014 Tairod Nathan Webster Pugh was fired from his job in Kuwait as an airplane mechanic. After his termination, he flew from Egypt to Turkey in an effort to cross the border into Syria to join ISIS. He was denied entry into the country, and was returned to Egypt where he was deported in January after he was found carrying multiple electronic devices where some of the data had been deleted. On his laptop, FBI agents discovered that he had been viewing ISIS propaganda online and conducting online searches for jihadist propaganda videos, as well as phrases such as “borders controlled by Islamic state,” “kobani border crossing,” and “who controls kobani.”

One of the most controversial pieces of evidence was a letter written to a woman who, according to court documents, he “appears to have close ties to . . . in Egypt whom he has identified as his wife.” The five paragraph letter detailed his desire to fight for Islamic State and become a martyr. Federal agents found the letter on his laptop but it had not yet been sent. It had merely been saved as a draft.

It was this letter that Judge Garaufis ruled on earlier this week. Pugh’s main argument concentrated on marital privilege. He claimed that since the letter had not been sent it constituted marital communication with his wife and there was no evidence that he intended to send the letter, an “essential element” of the marital communications privilege. Judge Garaufis in turn reasoned that Mr. Pugh didn’t intend to send the letter, commenting that if he intended to travel to Turkey for work he wouldn’t send a letter to his wife saying he was traveling to join the ISIS in Syria.

Other elements to the marital communications privilege require that the marriage be a valid marriage and that the privilege only applies to confidential communications, e.g., those not made in the presence of a third party or likely to be overheard by a third party. The prosecution posited an argument against the validity of Mr. Pugh’s marriage as well, claiming that he and his wife were effectively separated and that his marriage to his first wife who resided in the United States had not yet been entirely resolved. However, Judge Garaufis rejected this argument and chose to base his ruling on the failure of it being confidential communication. He decided that even if Mr. Pugh had intended to send the letter, it would not be protected by spousal privilege because Mr. Pugh would have needed the help of a third party to translate the letter into Arabic. This proved to be a deciding point of the argument since it destroys the privilege. A translator would have been required because Mr. Pugh and his wife do not speak the same language, and the judge decided that it was highly unlikely they were using a “trusted, confidential translator.” Judge Garaufis continued that Mr. Pugh often used a network of informal translators, so the letter was unlikely meant to be a confidential communication only to his wife.

This ruling could issue in several new factors to be considered for defense attorneys arguing marital privilege. It creates a scenario in which husbands and wives must meet certain criteria in order to even be eligible for protection under this defense. With this decision spouses will now be required to speak the same language, and if they don’t they will have to employ a “trusted, confidential translator” for all of their communications that they wish to remain protected.

Prosecuting attorneys will also be facing new challenges. Judge Garaufis’ decision allows prosecuting attorneys to attack marital privilege in a new way. It has created several new avenues for prosecutors to attempt to get spousal statements or writings into court. With Judge Garaufis’ ruling the court now faces a litany of new questions arising that will have to be answered. For instance, what ruling would result for spouses that are illiterate and require a third party to read letters, internet postings, and mobile text messages from their spouse. What if a spouse has a mental or physical disability that requires the aid of a third party for communication? The question the court will most likely face is where is the line drawn? What communications are protected under marital privilege and what types of communications that require the use of a third party are not?


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