696
Opinion of the Court
any extension would depend ultimately on an analysis of the likely costs and benefits of extending the privilege as Balsys requests. If such analysis were dispositive for us, we would conclude that Balsys has not shown that extension of the protection would produce a benefit justifying the rule he seeks.
The Court of Appeals directed careful attention to an evaluation of what would be gained and lost on Balsys's view. It concluded, for example, that few domestic cases would be adversely affected by recognizing the privilege based upon fear of foreign prosecution, 119 F. 3d, at 135-137; 17 that
American contempt sanctions for refusal to testify are so lenient in comparison to the likely consequences of foreign prosecution that a witness would probably refuse to testify even if the privilege were unavailable to him, id., at 142 (Block, J., concurring); that by statute and treaty the United States could limit the occasions on which a reasonable fear of foreign prosecution could be shown, as by modifying ex-tradition and deportation standards in cases involving the privilege, id., at 138-139; and that because a witness's refusal to testify may be used as evidence in a civil proceeding, deportation of people in Balsys's position would not necessarily be thwarted by recognizing the privilege as he claims it, id., at 136.
The Court of Appeals accordingly thought the net burden of the expanded privilege too negligible to justify denying its expansion. We remain skeptical, however. While we will not attempt to comment on every element of the Court of Appeals's calculation, two of the points just noted would present difficulty. First, there is a question about the standard that should govern any decision to justify a truly discretionary ruling by making the assumption that it will induce the Government to adopt legislation with international implications or to seek international agreements, in order to
17 The assessment was, of course, necessarily based on experience under the same-sovereign view of the privilege.
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