524 U.S. 666 (1998)
In 1961 Aloyzas Balsys obtained admission to the United States on an immigrant visa and alien registration issued at the American Consulate in Liverpool.1 He stated that he had served in the Lithuanian army between 1934 and 1940 and had lived in hiding in Plateliai, Lithuania, between 1940 and 1944.2
In 1992 Balsys applied for naturalization and answered no when asked whether he had ever participated in any persecution of any person because of race, religion, or national origin under the direction of a foreign government.3
The Office of Special Investigations of the Criminal Division of the Department of Justice began investigating whether Balsys had in fact participated in Nazi persecution during World War II.4 Such activity would subject him to deportation under several provisions of the Immigration and Nationality Act.5 OSI issued an administrative subpoena requiring Balsys to testify at a deposition about his wartime activities between 1940 and 1944 and his immigration to the United States in 1961.6
Balsys appeared and gave his name and address but refused to answer any other questions.7 He invoked the Fifth Amendment privilege against self-incrimination on the ground that his answers could subject him to criminal prosecution in Lithuania, Israel, or Germany.8 The Government filed a petition in the United States District Court for the Eastern District of New York to enforce the subpoena.9
The District Court found that Balsys would face a real and substantial danger of prosecution by Lithuania and Israel if he provided the requested information.10 It granted the enforcement petition and ordered Balsys to testify, treating the Fifth Amendment as inapplicable to a claim of incrimination solely under foreign law.11 Balsys appealed.12 The Court of Appeals for the Second Circuit vacated the District Court's order.13 It held that a witness with a real and substantial fear of prosecution by a foreign country may assert the Fifth Amendment privilege to avoid giving testimony in a domestic proceeding.14 The Supreme Court granted certiorari to resolve a conflict among the Circuits on the issue.15
Whether the Fifth Amendment privilege against self-incrimination may be invoked by a witness who has a real and substantial fear of prosecution by a foreign government?16
The Fifth Amendment privilege against self-incrimination is a limitation on the power of the sovereign compelling the testimony and applies only when the witness faces prosecution by that same sovereign, not by a foreign government.17
No. The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself.18 This protection is limited to prosecutions by the sovereign whose power is being exercised in compelling the testimony.19 In the established facts, the subpoena was issued by the United States government through OSI in a domestic proceeding.20 Balsys has no fear of domestic criminal prosecution because the statute of limitations has expired.21
His only fear is of prosecution by foreign nations.22 Those nations are not bound by the Fifth Amendment and do not implicate the same sovereign concerns that animated the privilege in Murphy v. Waterfront Comm'n.23 The extension of the privilege to foreign prosecutions would require courts to speculate about foreign law.24 It could also interfere with immigration enforcement.25
These concerns support maintaining the traditional limitation of the privilege.26
The Fifth Amendment privilege against self-incrimination may not be invoked by a witness who has a real and substantial fear of prosecution by a foreign government.27
Related opinions on this issue
Justice Stevens dissents because the Fifth Amendment privilege against self-incrimination is a fundamental right that protects individuals from being compelled to provide testimony that may be used against them in a criminal proceeding.28 The privilege is not limited to prosecutions by the same sovereign that is compelling the testimony.29 It is meant to protect against the risk of substantial harm from any criminal case.30
In Murphy v. Waterfront Comm'n, the Court held that the privilege applies when a witness faces a real and substantial risk of state prosecution.31 The same logic should apply when a witness faces a real and substantial risk of foreign prosecution.32 The practical concerns raised by the majority do not justify narrowing the privilege.33
Courts are capable of assessing whether a witness has a real and substantial fear of foreign prosecution.34 The risk of perjury can be addressed through other means.35 The Government's interest in enforcing the immigration laws does not outweigh the fundamental right protected by the Fifth Amendment.36
Justice Stevens would affirm the judgment of the Court of Appeals.37
Joined by Justice Ginsburg (as To Part I)
Justice Breyer dissents because the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself.38 This Court has not read the words any criminal case to limit application of the Clause to only federal criminal cases.39 Murphy holds that the constitutional privilege against self-incrimination protects a federal witness against incrimination under state law.40
The only difference between Murphy and this case is that one cannot say as a matter of law that every threat of a foreign prosecution is a reasonable threat.41 Where there is such a reasonable threat and the threat is real and substantial, the privilege as Murphy understands it would apply.42 The majority's same-sovereign rule is inconsistent with the historical understanding of the privilege.43
It is also inconsistent with the basic principles that the privilege serves to prevent governmental overreaching and to protect individual dignity.44 The judgment of the Court of Appeals should be affirmed.45
Justice Ginsburg joins Justice Breyer's dissent as to Part I.46 She adds that the privilege against self-incrimination is closely linked historically with the abolition of torture and is properly regarded as a landmark in man's struggle to make himself civilized.47 In her view the Fifth Amendment privilege against self-incrimination prescribes a rule of conduct generally to be followed by our Nation's officialdom.48
It counsels officers of the United States and of any State of the United States against extracting testimony when the person examined reasonably fears that his words would be used against him in a later criminal prosecution.49 As a restraint on compelling a person to bear witness against himself, the Amendment ordinarily should command the respect of United States interrogators whether the prosecution reasonably feared by the examinee is domestic or foreign.50