Cite as: 524 U. S. 666 (1998)
Breyer, J., dissenting
the Government would lose little information, and even fewer cases, were the privilege recognized here.
In those rare instances where the need for testimony was sufficiently great, a grant of de facto "immunity" remains a possibility. The Government need only take steps sufficient to make the threat of foreign prosecution insubstantial. Thus, a promise by the United States that deportation will not take place, or that deportation to a different country will ensue, would seem sufficient. A further promise by the foreign nation that prosecution will not take place, or will not make use of the elicited testimony, will obviate the need even for such a deportation promise. And were a foreign sovereign to later seek extradition of the witness, the Government, under existing law, might retain the discretion to decline such a request. See 18 U. S. C. § 3186 ("Secretary of State may order" extraditable person "delivered to . . . foreign government"); § 3196 (giving Secretary of State discretion whether to extradite United States citizens provided treaty does not obligate her to do so).
I do not want to minimize the potential difficulties inherent in providing this kind of "immunity." It might require a change in domestic law, or in a given case, an adjustment in an understanding reached with a foreign government. In unusual circumstances, as Justice Stevens recognizes, see ante, at 701, it might require adjusting the legal rules that express the privilege in order to prevent a foreign govern-ment's efforts to stop its citizens from testifying in American courts. But I do not see these difficulties as creating overwhelming obstacles to the legitimate application of the privilege in instances such as the one present here. Nor do I see these difficulties as significantly greater than those that inhere in the ordinary grant of immunity, which also requires legislation, and which also can create friction among competing jurisdictions. At worst, granting de facto "immunity" in this type of case would mean more potentially deportable criminal aliens will remain in the United States, just as to-
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