Full opinion text
ROSEN, District Judge. INTRODUCTION This action is before the Court on Trustee David W. Allard’s (“Trustee”) Motion For Order Compelling Debtor to Testify, filed April 12, 1991. The Trustee, representing the creditors in a Chapter 11 bankruptcy proceeding, moves the Court to compel the Debtor, llene Ruth Moses (“Debt- or”), to respond under oath to certain questions concerning foreign assets associated with her failed business. In response to these questions, the Debtor invoked her Fifth Amendment privilege against self-incrimination, asserting that such compelled testimony could incriminate her in a pending criminal proceeding in Switzerland. She filed a response to the Trustee’s motion on May 3, 1991 explaining the grounds for her assertion of the Fifth Amendment privilege to the questions at issue. On May 13, 1991, the Trustee filed a reply brief to Debtor’s response. Oral argument was heard by the Court on August 2, 1991. This Motion presents important questions of constitutional interpretation and jurisprudence on which there is little legal precedent and relatively sparse scholarly comment. Further, as criminal activity takes on an increasingly international character and modern technology brings nations and their police forces into increasingly close contact, the issues presented in this case will be of increasing immediacy and import. For these reasons, the Court will attempt to give the issues presented here the thorough and comprehensive treatment they merit. FACTS The Debtor owns or controls a number of domestic and foreign companies doing business in the ladies’ clothing industry. On August 1, 1989, four of her creditors, Semifora AG (“Semifora”), Peat Marwick Main & Co. (“Peat Marwick”), James Hope, and Henry and Helen Hunter, filed an Involuntary Petition under Chapter 7 of the Bankruptcy Code against the Debtor. In mid-September 1989, the Debtor consented to the administration of her assets under Chapter 11 and remained in control of her property as debtor-in-possession. At this time, she filed schedules of assets and liabilities listing, among other things, ownership in Jolland Limited (“Jolland”), a foreign corporation based in Hong Kong. She valued her interest in Jolland at $89,000,-000.00. The first Chapter 11 meeting of creditors was held on October 25, 1989. Citing her fear of prosecution in a criminal investigation then pending in Switzerland, the Debt- or asserted her Fifth Amendment privilege against self-incrimination and refused to answer virtually all the creditors’ substantive questions. On the motion of creditors Semifora, Michigan National Bank, Peat Marwick, and Krusch & Modell, the Bankruptcy Court ordered the appointment of an independent Chapter 11 trustee on December 19, 1989. In early 1990, the Debtor proposed to her creditors that, if given until September 5, 1990, she would tender funds adequate to pay their claims. The creditors agreed, but the Debtor was unable to fund her plan by September 5, 1990 and, on September 10, 1990, the Bankruptcy Court converted the case to Chapter 7. As a result of this conversion, a Chapter 7 meeting of creditors was scheduled. Mr. Allard continued as Chapter 7 Trustee. On October 4, 1990, prior to the first Chapter 7 meeting, the Trustee filed a Motion for Order Determining the Scope of Debtor’s Right Not to Testify. This motion cited the Debtor’s near complete refusal to answer questions at the October 25, 1989 Chapter 11 meeting of creditors. The motion sought to limit, in advance of the Chapter 7 meeting, Debtor’s assertion of the Fifth Amendment. The Bankruptcy Court had not ruled on the Trustee’s motion as of the date of the Chapter 7 meeting. At that meeting, the Debtor answered questions concerning domestic assets but asserted the Fifth Amendment privilege with respect to her foreign assets and transactions. This included testimony as to alleged trusts located in Bermuda and Guernsey, in which she may have had an interest, her bank accounts located in the United Kingdom, Switzerland, Jersey, Hong Kong, and Bermuda, safe deposit boxes located in Switzerland, as well as questions relating to the source of funds she used for international travel. She also refused to disclose any information about her proposed plan of reorganization and payment of $30,000,000.00 or more to creditors, her sources of income other than domestic income, whether her other companies transacted any business overseas, and other matters. Moreover, she failed to explain how the answers to these questions would be incriminating. On November 1, 1990, the Trustee’s Motion was heard by the Bankruptcy Court. The Trustee’s attorney and the attorney for Semifora argued that the Debtor must specify with respect to each individual area of questioning why the answers would furnish a link in the chain of evidence necessary for criminal prosecution in Switzerland. In early November, the Trustee and the Debtor filed post-hearing briefs on the question of the effect of a pending extradition treaty between the United States and Switzerland and on the application of the Fifth Amendment in the context of foreign criminal proceedings. The Debtor’s brief contended that her assertion of the Fifth Amendment was proper even in the absence of an extradition treaty, but requested time to obtain formal evidence of the pending treaty. On December 4, 1990, the Bankruptcy Court issued its Order Compelling Debtor to Testify. It found that Debtor had failed to demonstrate a real and substantial fear of foreign prosecution. There was no indication, said the court, that the yet unrati-fied treaty would pose a substantial threat of extradition. As an alternative basis for its holding, the court held that even without a treaty in force, the Debtor had failed to establish a sufficient nexus between the criminal charges and the answers to the questions asked by the creditors. On December 7, 1990, the Debtor filed her Notice of Appeal. The Bankruptcy Court, on December 10, 1990, denied the Debtor’s motion for stay pending appeal. On December 12, 1990, this Court granted the Debtor a stay pending appeal. Oral argument on the appeal was heard before this Court on January 30, 1991. At that hearing, the Court directed that the examination of Debtor be recommenced to determine the precise scope of her refusal to testify and thereby narrow the areas of dispute. That examination was conducted on February 27, March 5, and March 6, 1991. The Debtor continued to assert the Fifth Amendment privilege in response to certain questions. These questions concerned, generally: (1) the identities of persons associated with Romtex; (2) meetings in Zurich in 1982 and 1983 and related questions; (3) the identity of Benefactor (a person linked to Debtor and the Romtex Group); (4) the identity of Mr. Perino (a person associated with the Union Bank of Switzerland); (5) a meeting in Bermuda in 1984 or 1985; and (6) a loan for purchase of wool cashmere cloth. The Debtor was also asked, in connection with some of these questions, why she claimed that she was entitled to Fifth Amendment protection. She refused to answer these questions as well. DISCUSSION In addressing the Fifth Amendment issues presented here, the Court will, broadly speaking, engage in a two-part analysis: (1) As a threshold matter, do the questions at issue give rise to a real and substantial fear of prosecution such that the privilege against self-incrimination is even implicated. (2) If so, may the Fifth Amendment’s privilege against self-incrimination be effectively invoked where the threat of criminal liability arises from prosecution by a foreign, as opposed to an American, government. A. REAL AND SUBSTANTIAL RISK OF FOREIGN PROSECUTION Many opinions, citing the principle that a court will not decide a case on a constitutional basis if there exists another basis for decision, Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936), have simply held the privilege inapplicable because the claimant could show no real and substantial fear of foreign prosecution. In Zicarelli v. New Jersey State Com. of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972), one of the few cases even to address the general questions at issue here, the Supreme Court held that without a real and substantial fear of foreign prosecution a claimant to the Fifth Amendment may be compelled to testify. Id. 92 S.Ct. at 1675. In Zicarelli, the claimant was subpoenaed by the New Jersey State Commission of Investigation to testify about organized crime, racketeering, and political corruption in Long Branch, New Jersey. In the course of several appearances before the Commission, he invoked his privilege against self-incrimination, and continued to assert his privilege even after having been granted immunity, arguing that he would be subject to a real and substantial risk of foreign prosecution from which a domestic grant of immunity would not protect him. To support his claim, he submitted a number of newspaper articles calling him the “foremost internationalist” in organized crime and detailing his alleged participation in unlawful activities in Canada and the Dominican Republic. The Supreme Court held that while the answers to these questions, in the abstract, might have led to fear of a foreign prosecution, this fear was groundless in the context in which the questions were posed. As stated by the Court: “But the context in which a question is asked imparts additional meaning to the question, and clarifies what information is sought.” Specifically, the Commission was looking for answers to the claimant’s domestic activities and had no interest in his foreign transactions. The claimant could have truthfully answered the questions asked without divulging information which would have subjected him to foreign prosecution. Id. at 1676. More recently, the Court of Appeals for the Second Circuit addressed this issue in In re Grand Jury Subpoena of Flanagan, 691 F.2d 116 (2d Cir.1982). The federal prosecutor granted Flanagan use immunity and asked that he testify before a federal grand jury on a plot to smuggle guns from the United States to Great Britain. Flanagan refused, claiming that even with immunity the information requested could be used to incriminate him under the criminal statutes of Northern Ireland and the Republic of Ireland. The Second Circuit rejected this claim. It avoided discussion of the scope of the privilege, however, by ruling that Flanagan did not face a real and substantial risk of foreign prosecution. In reaching this conclusion, the court set forth several factors to be considered when deciding whether the claimant’s responses would be incriminating in a foreign prosecution. This Court distills these factors into a four-part test: (1) whether there is an existing or potential foreign prosecution; (2) whether there is a likelihood that the testimony would be disclosed to the foreign government; (3) whether the likely testimony would initiate or further the prosecution so as to potentially subject the claimant to criminal liability, i.e., whether there is a nexus between the testimony sought and the prosecution; and, (4) whether such prosecution would entitle the foreign government to have the claimant extradited from the United States. The Second Circuit found that Flanagan did not face a real and substantial risk of foreign prosecution. There was no present or prospective prosecution against him; the questions asked of him concerned primarily domestic activities; the possible crimes involved in the testimony would not serve as a basis for extradition to Ireland or the United Kingdom; and, it was unlikely that the grand jury testimony would be directly or indirectly communicated to the relevant authorities in Ireland or the United Kingdom. Flanagan, 691 F.2d at 124. The opinion concluded by observing: In addition, the district court has the discretionary power to minimize any risk of disclosure by ordering that additional protective measures be taken, such as sealing the transcript on the condition that it will not be disclosed to third persons without the court’s permission. ze/. 1. EXISTING FOREIGN PROSECUTION The posture of the instant case differs factually in important respects from Flanagan. First, the Debtor and the Trustee have stipulated that there is a criminal investigation pending against the Debtor in Switzerland. It is similarly undisputed that a warrant has been issued for the Debtor’s arrest in Switzerland. While, strictly speaking, this state of affairs might not qualify as a pending prosecution, it seems reasonably clear from the record that, were the Debtor to return, or be returned, to Switzerland, she would face a real risk of being apprehended and implicated in a criminal prosecution. Therefore, it appears to the Court that the Debt- or satisfies the first level of inquiry. 2. DISCLOSURE OF TESTIMONY TO FOREIGN GOVERNMENT The second hurdle is similarly surmounted by the Debtor. Both parties have stipulated that Semifora, a creditor in this case, is the complainant in the Swiss proceeding pending against the Debtor or played some role in bringing the matter to the Swiss authorities. Therefore, it seems likely that were the Debtor to reveal some incriminating evidence to Semifora at a Chapter 11 meeting, this information would, directly or indirectly, come to the attention of the relevant Swiss authorities. 3.NEXUS OF TESTIMONY TO FOREIGN PROSECUTION The third factor is really at the heart of the instant motion. The point of inquiry is whether, and to what extent, there is a nexus between the content of the answers sought and the potential Swiss criminal prosecution. If the answers to the proposed questions would not be incriminating, the Debtor has no reason to avoid a response, even if threatened with criminal prosecution. This factor actually requires two separate analyses. First, the Court must determine the extent to which the Debtor must justify her invocation of the privilege. Second, the Court, examining the proffered justification and the questions at issue, must decide whether there is an adequate nexus between the truthful answers to the questions and the Swiss investigation. The Debtor, of course, is in the best position to explain exactly how and why her answers would incriminate her. But, in so explaining, she might well be forsaking the precise benefits she desires under the privilege. Therefore, the Court must find a balance between the amount of information needed to decide whether there is a nexus, and the amount of information which would render meaningless the privilege she claims. The Supreme Court, in Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), established the standard to be used in making this determination. First, it held that the court, and not the witness, would be the ultimate arbiter as to whether the privilege would apply. The claimant of the privilege may not escape testifying simply by stating that the information is privileged. Yet the claimant need not explain in detail the rationale for his reticence. Rather a balance, favoring the claimant, is to be struck. The Court said, To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. Hoffman, 341 U.S. at 486-87, 71 S.Ct. at 818-19. The Sixth Circuit shed more light on this test in In re Morganroth, 718 F.2d 161 (6th Cir.1983). It outlined two situations in which the privilege could properly be claimed, and established distinct tests for each. The first situation involves an answer which, on its face, calls for the admission of a crime or furnishes a link in the chain of evidence needed to prosecute. Id. Even if the information, seen in a vacuum, appears innocent, the privilege is justified if, in light of other facts already developed, it appears to present a danger of prosecution. In such a case, the witness need only assert the privilege and identify the nature of the criminal charge or supply sufficient facts so that a particular criminal charge can be reasonably identified by the court. Id. In the second situation, however, the questions, on their face and in relation to other facts, appear to call for only innocent answers. In this instance, the court may require that the witness supply personal statements under oath or provide evidence with respect to each question propounded to him to indicate the nature of the criminal charge which provides the basis for his fear of prosecution and, if necessary to complement nontestimonial evidence, personal statements under oath to meet the standard for establishing reasonable cause to fear prosecution under this charge. Id. at 170. Counsel may make arguments, but the facts must come from the claimant. Id. This higher standard is necessary because often only the claimant possesses the information upon which the court must make its determination; absent the threat of the penalty of perjury, the witness may be tempted to try to mislead the court. Based on a careful review of the record, the Court believes that the Debtor’s situation is closer to that set forth in the first Morganroth category. In light of facts established by the parties, it seems clear that a truthful answer to the questions posed by the creditors could well result in injurious disclosures. Thus, the information supplied by the Debtor is satisfactory to enable the Court to determine whether the nexus between the answers to the questions and the risk of foreign prosecution has been satisfied. The Court must now review the questions in dispute, in the context of the status of the Swiss criminal investigation, to determine whether the answers to these questions would advance the investigation in such a way as to be incriminating to the Debtor. To do so, it must decide whether, by the use of reasonable inference it can conceive of a sound basis for the claimant’s reasonable fear of prosecution. In making this determination, the Court finds guidance in two appellate decisions. The Sixth Circuit in In re Morganroth stated, in relevant part, A witness presents sufficient evidence to establish a foundation for the assertion of the privilege and shows a real danger of prosecution if it is not perfectly clear to the court “from a careful consideration of all of the circumstances in the case, that a witness is mistaken, and that the answer[s] cannot possibly have such a tendency to incriminate.” Stated differently, sufficient evidence is presented by a witness if a court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution. Morganroth, 718 F.2d at 169 (quoting Hoffman v. U.S., 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118 (1951)) (citation omitted). The Ninth Circuit also discussed this issue in Hashagen v. United States, 283 F.2d 345, 348 (9th Cir.1960): The “guarantee against testimonial compulsion” embodied in the Fifth Amendment to the United States Constitution must be liberally construed and broadly applied in order to sustain fully the basic right it was designed to protect. It is not merely an admission of guilt in a federal crime, or of a probative fact which, with others, may aid in establishing guilt, that may be withheld; the privilege to remain silent may also be validly asserted where the answer to a question would be likely to provide a lead or clue to a source of evidence of such crime, and thus furnish a means of securing one or some of the “links in the chain of evidence” required for federal prosecution of the witness. The Swiss investigation involves allegations that the Debtor procured a loan for her company, Jolland, by misrepresenting to Semifora the value of Jolland’s accounts receivable. A translated press release from the Cantonal Department for Commercial Offenses of the Zurich District Attorney’s Office dated April 11, 1991 speaks of the Debtor’s business transactions in Switzerland and the pending investigation of certain loan transactions. It notes that the Romtex Group, centered in Southeast Asia, is comprised of hundreds of companies (which the release does not identify) and is thought to be a giant, secret clothing cartel managed by the Debtor. Jolland, based in Hong Kong, was once controlled by the Debtor and was engaged in a profitable business with the Romtex Group. According to the release, the Debtor also controlled Romtex AG and Ircon AG. Ircon AG was the investment company for payments which Romtex AG owed the Debtor. Semifora granted the Debtor a total of four loans. First, in June 1987, Jolland received about seven million Swiss francs to buy goods. An “exchange asset” of 8.4 million Swiss francs served as security. Second, in July 1987, Ircon AG received a credit of about 1.4 million Swiss francs. As security, Semifora had, among other things, a guarantee from the Debtor that Ircon AG would hand over its claims against Romtex AG. Third, in November 1987, the loan to Jolland was increased to 18 million Swiss francs. As security, the “exchange asset” was renewed and Rom-tex AG gave up its accounts receivable to the bank. Fourth, from October 1987 to April 1988 the Debtor overdrew her checking account in the amount of 340,000.00 Swiss francs. According to the release, after February 1988 it was discovered that the security of the now insolvent Romtex AG was not covered, that the accounts receivable did not exist, and that the location of the goods was not known. An investigation revealed that Romtex AG, Ircon AG, and a series of other companies were fictitious, and that the balance sheet of Jolland had been falsified. Also, the written reports to Semifora were incorrect. The release ends by noting that several people, some under warrant for arrest, are sought with respect to further offenses and that the case is only temporarily closed. The first set of questions asked by the creditors concerns, generally, the identities of persons associated with Romtex. Based on the record before the Court, it is quite likely that, at the very least, information concerning these people could have the effect of facilitating and narrowing the investigation of the Zurich District Attorney. Romtex AG’s accounts receivable were pledged as security on one of the loans from Semifora to the Debtor. The District Attorney is investigating whether the loans were fraudulently obtained by using nonexistent accounts receivable. Should the Debtor identify people or companies associated with the Romtex Group, the District Attorney would then be able to investigate and interview these people in an attempt to determine the validity of the obligations owed to Romtex AG by the Romtex Group. It is these obligations which, in turn, comprise the accounts receivable owed to Jol-land by Romtex AG, and which were pledged by Jolland as security on the loan from Semifora. The second set of questions concerns the Debtor’s meetings in Zurich in 1982 and 1983. These meetings were between the Debtor and persons associated with the Romtex Group, including her Romtex contact. For the same reasons set forth above, the Court believes that disclosure of the identity of the Romtex contact and others with whom the Debtor met in Zurich would enable the District Attorney to determine the identities of those persons comprising the Romtex Group. This knowledge would further enable the prosecutor to learn or confirm information concerning Jolland’s accounts receivable. The third set of questions concerns the identity of the Debtor's “benefactor,” the person who introduced the Debtor to the Romtex cartel. Disclosure of the identity of the benefactor would better enable the prosecutor to determine the identities of the members of the Romtex Group. The fourth set of questions concerns Mr. Perino, a banker for Romtex AG. Once again, the identity of Mr. Perino and those associated with him may well lead the District Attorney to the discovery of the members of the Romtex Group. The fifth, and final, set of questions concerns a meeting in Bermuda between the Debtor and an unidentified person to discuss a matter apparently related to the relationship between Jolland and the Rom-tex Group. Although the facts about this meeting are unclear, the possibility that information about the meeting might elucidate for the prosecutor the connection between Jolland and Romtex is sufficient to satisfy the test set forth above. In sum, under the broad standard set forth in Hoffman, Morganroth, and Hash-agen, the Court finds that the Debtor has adequately established that the answers to the creditors’ questions “would be likely to provide a lead or clue to a source of evidence” of possible criminal behavior, thus providing a sufficient nexus to the potential Swiss criminal prosecution to sustain the invocation of the privilege. Thus, the Court believes that the Debtor has satisfactorily met the third level of inquiry. 4. EXTRADITION TO SWITZERLAND (a) RIGHT TO TRAVEL The final prong of inquiry concerns the possibility of extradition. Before addressing this issue, however, the Court will handle the Debtor’s related claim that answering the questions will inhibit her right to international travel. The Court rejects this argument outright. First, as there is a pending warrant for her arrest, she could be apprehended and questioned upon return to Switzerland whether or not she answers the questions. See In re Grand Jury Subpoena of Flanagan, 691 F.2d at 124, n. 7. Second, it defies logic to suggest that because, in carrying out the mandates of our judicial system, the Court may place the Debtor in the position where travel to some countries would place her in jeopardy of prosecution or extradition, it therefore may not compel her to answer questions in a domestic bankruptcy proceeding. Should she decide to return to Switzerland, she may or may not be prosecuted. The Court must apply the law without concern for the travel plans of the claimant. Though the Supreme Court has not addressed this issue in the context of the factual situation today before this Court, it has ruled on the right to travel abroad in contravention of legislative or executive authority forbidding such travel. Initially, in Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), the Supreme Court held that Congress had not given the Secretary of State discretion to deny a passport to a person because of his Communist political associations and activities. The decision held free international travel to be an “important aspect of the citizen’s ‘liberty.’ ” Id. at 126, 78 S.Ct. at 1118. Subsequent decisions by the Court, however, have limited Kent’s broad construction of the right. In Califano v. Aznavorian, 439 U.S. 170, 176, 99 S.Ct. 471, 474, 58 L.Ed.2d 435 (1978), the Court held that a mere rational justification would suffice for Congress to limit international travel. It observed the “crucial difference between the freedom to travel internationally and the right of interstate travel,” which it had earlier found to be “virtually unqualified.” Griffin v. Breckenridge, 403 U.S. 88, 105-06, 91 S.Ct. 1790, 1799-01, 29 L.Ed.2d 338 (1971); United States v. Guest, 383 U.S. 745, 757-58, 86 S.Ct. 1170, 1177-78, 16 L.Ed.2d 239 (1966). More recently, the Court upheld the President’s right to revoke, without a hearing, the passport of a citizen whose activities in a foreign country would likely harm American security interests. Haig v. Agee, 453 U.S. 280, 308-09, 101 S.Ct. 2766, 2782-83, 69 L.Ed.2d 640 (1981). The Court also sustained a Treasury regulation effectively banning travel to Cuba for foreign policy reasons by forbidding diversion of hard currency to that country. Regan v. Wald, 468 U.S. 222, 242-43, 104 S.Ct. 3026, 3038-39, 82 L.Ed.2d 171 (1984). The District Court for the Eastern District of New York did obliquely address this issue in the context of the Fifth Amendment privilege. In In re Flanagan, 533 F.Supp. 957 (E.D.N.Y.), rev’d, In re Grand Jury Subpoena of Flanagan, 691 F.2d 116 (2d Cir.1982), the court stated that the witness had a reasonable fear of prosecution. While observing that the witness probably could not be extradited to Northern Ireland, the desired testimony, said the court, would impede his desire to travel: More importantly, the witness claims that he is a citizen of the Republic of Ireland and has indicated that he travels to Ireland once a year. Refusal to extradite would be little solace to one who might wish to travel to his native country. Flanagan, 533 F.Supp. at 965. The Second Circuit rejected this contention but did so on the basis that, in that case, the witness had no reason to fear foreign prosecution even if he returned to Ireland. Thus, the court of appeals did not directly address the issue of whether a witness may have a real and substantial fear of foreign prosecution even absent the possibility of extradition. Flanagan, 691 F.2d at 124. Other circuits have noted, but not discussed, this issue. In In re Tierney, 465 F.2d 806 (5th Cir.1972), cert. denied 410 U.S. 914, 93 S.Ct. 959, 35 L.Ed.2d 276 (1973), the court remarked in dicta that a refusal by the government to extradite would provide little consolation to the New York witnesses should they wish to travel to Great Britain. Id. at 812. The Ninth Circuit, however, apparently assuming that there was no right to international travel in the context of the privilege, said, It is no answer to Lemieux’s fears that he can avoid foreign prosecution by giving up travel to or through a foreign country that may prosecute him. Assuming that the burden on his traveling choice is permissible, it is a choice that he may never have. Extradition proceedings could force him to travel to Mexico or Columbia. In re Federal Grand Jury Witness, 597 F.2d 1166, 1169 (9th Cir.1979). Finally, in discussing the threat to the witness from a voluntary return to the foreign country threatening prosecution, the D.C. Circuit concluded, “We only add that it [privilege] does not protect against dangers voluntarily assumed.” In re Sealed Case, 825 F.2d 494, 497 (D.C.Cir.), cert. denied 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 391 (1987). There has, thus, been no authoritative discussion of this issue. However, reasoning by analogy, if the Congress or President is able to proscribe a person’s travel for a rational justification, this Court should be able indirectly to limit the Debt- or’s voluntary travel abroad when such travel would prevent the collection of evidence in a judicial proceeding. Moreover, the court is not actually prohibiting the Debtor’s travel. Were the Court to compel the testimony, it would simply be requiring her to abide by the laws and rules of this country. The choice of whether to travel or not to travel would still rest with the Debtor. The effect of her compelled testimony is but one factor she would have to weigh. Simply because, on account of the Debtor’s allegedly illegal actions abroad, the compelled testimony may result in a more effective foreign prosecution, the Debtor is not relieved of her testimonial obligations under our judicial system. (b) EXTRADITION TREATY Without the possibility of extradition, the Debtor would have little reason to fear a criminal prosecution, and, thus, would lack a justification for asserting the privilege. The current U.S.-Swiss extradition treaty contains an exception for the citizens of the extraditing country. It states that neither country is required to extradite its own citizens. Relying on the Supreme Court’s decision in Valentine v. United States, 299 U.S. 5, 57 S.Ct. 100, 81 L.Ed. 5 (1936), the Trustee claims that the current U.S.-Swiss extradition treaty undermines the Debtor’s reasonable fear of prosecution. That case held that a similar exception in the French-U.S. extradition treaty prohibited the U.S. from extraditing United States citizens. The Debtor, while claiming that the treaty exception is permissive, not mandatory, seems to concede this point and instead relies on a new extradition treaty between the United States and Switzerland which would permit extradition of each country’s own citizens. That treaty has been negotiated but not yet ratified by the relevant legislative bodies of each country. The Debtor contends that the likelihood of ratification in the future is sufficient to create a reasonable fear of extradition. In a letter dated July 29,1991, the Debtor informed the Court that, according to the State Department, consideration of the treaty was delayed because the Senate Foreign Relations Committee was occupied with the Gulf War, but that it will be brought before the Committee after Labor Day,' September 2, 1991. The Trustee counters that ratification is not certain and, even if it were, the date of ratification is too speculative to be relied on by this Court. Once the new treaty is ratified, the Debt- or’s case must still meet certain requirements before it will be considered ripe for action. First, the Debtor would have to be charged with or found guilty of an “extraditable offense.” As of this date, the Debt- or has not been charged with a crime in Switzerland. Moreover, under the treaty, the United States is only obligated to extradite persons for acts committed outside Swiss territory if those acts would be punished in the United States under similar circumstances. Finally, the treaty restricts extraditable offenses to those punishable under the laws of both countries by a deprivation of liberty for a period exceeding one year. It appears highly likely that the treaty will eventually be ratified. By this time, the Debtor may have been charged in Switzerland with a criminal offense. Next, it would appear that the charges of fraud and forgery with which the Debtor is threatened in Switzerland are offenses which would be punished under similar circumstances in the United States. Finally, because both fraud and forgery are subject in the United States to a maximum penalty of five years imprisonment, they would be extraditable crimes under the treaty. The totality of information now on the record leads the Court to believe that there is a strong possibility that the Debtor could be extradited to Switzerland now or sometime in the future. The fact that extradition is not certain or is somewhat remote in time is not determinative. This is a particularly important consideration in weighing the interests at stake. If the Debtor is compelled to testify and is subsequently indicted and extradited to Switzerland, it is too Jate to protect her privilege against self-incrimination. By this point, she would already have suffered irreparable harm. There is one final issue neither addressed in Flanagan nor in the parties’ briefs: Whether a Swiss equivalent of the privilege would serve to prevent information gleaned from a domestic bankruptcy proceeding from being submitted in a Swiss criminal prosecution. If it could be definitely shown that even were the Debtor to be extradited to Switzerland to face a criminal prosecution, the information in dispute would not be admissible in a Swiss court, the Court would consider this in examining the extent of the fear of foreign prosecution. Reference to the Swiss Federal Constitution is unavailing. There is no equivalent to our privilege, but Article 4 does offer protection to Swiss citizens from arbitrary (“Willkur”) actions by individual Cantons. On its face, this would not prevent a Canton from using information gleaned from a foreign judicial proceeding in a domestic prosecution. The more pertinent reference, however, is to the procedural rules of the Canton of Zurich. Under Article 64, individual Cantons are granted the right to promulgate rules of evidence and judicial administration in criminal cases. The Debtor’s Swiss attorney, Mr. Bernard Wehrli, responding to the Debtor’s request for information on this subject, wrote that under § 131 of Zurich’s Criminal Process Law, the Debtor would have a right against self-incrimination and a right to keep silent in the face of criminal proceedings in a Swiss court of law. With respect to evidence already gained through judicial proceedings in the United States, however, Swiss law does not seem to bar its use. According to Mr. Wehrli, the recent trend in Swiss law is to bar illegally obtained evidence only if it could not, in the judgment of the court, have been obtained legally. Evidence compelled by a United States court would not be judged to have been illegally obtained. Mr. Wehrli concludes by noting that, to his knowledge, no other Swiss statutes or international treaties of any kind would bar this kind of evidence. Although this analysis is not determinative for the Court in reaching its decision, it is useful. The above analysis reveals that, when all the interests are weighed, the Debtor has satisfied all four factors of the test derived by this Court from In re Grand Jury Subpoena of Flanagan and that she has a real and substantial fear of foreign prosecution. Therefore, it is necessary to proceed to an analysis of the applicability of the Fifth Amendment privilege to foreign prosecutions. B. SCOPE OF THE FIFTH AMENDMENT PRIVILEGE The issue presented by this case— whether the privilege against self-incrimination may be validly invoked where the threat of prosecution is by a foreign government rather than a domestic government — posits for this Court one of those relatively rare instances in judicial decision-making in which precedent provides no compelling answers in one direction or the other, but rather requires inquiry into, and analysis of, the philosophy and policy that underlies and supports one of this nation’s most widely accepted and fundamental constitutional rights. Indeed, because there do not appear to be any definitive prece-dential beacon lights to clearly illuminate a decisional path, it seems to the Court that the inquiry must begin in the first instance with the history and underlying tenets of the privilege. 1. HISTORY OF THE PRIVILEGE The Fifth Amendment privilege probably originated in ancient Talmudic law. N. Lamm, The Fifth Amendment and its Equivalent in Jewish Law, 17 Decalogue 1,12 (1967). However, some commentators contend that the nexus between the ancient Jewish law and the modern privilege is tenuous at best. L. Levy, Origin of the Fifth Amendment Right Against Self-Incrimination at 439-41 (2d ed. 1986) (hereinafter “Levy”) (concluding that there is no proof that Talmudic references had any influence on the development of the privilege). Nevertheless, it is undeniable that the Rabbinic courts recognized a right not to testify against oneself very similar to the privilege. As noted by Professor Levy: Woven into the texture of this criminal procedure of the old Rabbinic courts was the maxim ein adam meissim atsmo rasha, the Hebrew equivalent of nemo tenetur seipsum tenetur. Literally translated it means, a man cannot represent himself as guilty, or as a transgressor. ... That rule was an absolute and could not be waived or relinquished. Id. at 434. The theological and jurisprudential underpinnings for this rule are somewhat unclear. It may have been that a self-accusatory statement was considered untrustworthy or that a person who would incriminate himself was not considered of sound mind, and, thus, could not form the intent to incriminate himself. Id. at 438. Or, it may have been that self-incrimination in a criminal matter was likened to attempted suicide, a practice prohibited under Jewish law on the theory that the individual’s body belongs to God and not to the individual. Id. at 439. Despite the ambiguity of its genesis, it is clear that this rule was a major tenet of ancient Jewish law. The connection to medieval English law, however, is less than clear. It is almost certain that the idea behind the privilege was in existence in medieval England. The privilege originally served as a shield against inquisitorial proceedings by ecclesiastical and prerogative courts, such as the Star Chamber and the High Commission. See generally Levy, supra; Urick, The Right Against Compulsory Self-Incrimination in Early American Law, 20 Colum.Hum.Rts.L.Rev. 108 et seq. (1988) (hereinafter “Urick”); Fausett, Extending the Self-Incrimination Clause to Persons in Fear of Foreign Prosecution, 20 Vanderbilt Journal of Transnational Law 699, 702 (1987) (hereinafter “Fau-sett”); Friendly, The Fifth Amendment Tomorrow, 37 Cin.L.Rev. 671, 677-79 (1968) (hereinafter “Friendly”). These bodies would compel an accused to swear an oath, called an oath ex officio, to give true answers to whatever questions might be asked. The oath was taken by the accused without formal charges or without knowing the crime for which he was being questioned. Following the oath, the accused was asked a series of questions designed to extract a confession or a contradiction. To say the least, this practice occasioned discomfort. In commenting on a popular and influential book on the oath ex officio written in the late sixteenth century, Professor Levy writes: Threatened with punishment, they [the accused] appealed to the laws of the realm. Thus every examination, as Foxe reports it, tended to wind up in a dramatic scene in which an honest believer was shown pitting the plain truth of the Word against the super-subtle sophistries of hypocritical churchmen and a loyal subject of the Crown was shown asserting his rights as an Englishman against a papist prelate. Levy, supra, at 82. It was this persecution of the individual by the church that seemed to serve as the catalyst for the formation of the privilege. The privilege, then, sprang not from a specific right granted under law, but from a belief in the fundamental unfairness of a court’s compelling a citizen to answer questions designed to accuse that citizen of a crime. In the mid-seventeenth century, the oath ex officio was abolished and, at the 1637 treason trial of John Lilburne, the right against self-incrimination was established at common law in a form approaching its modern manifestation. It did not prohibit inquiry or even incriminating interrogatories, but simply permitted the accused to refuse to answer questions “without formal prejudice or penalty.” Id. at 313. Lil-burne’s was a political trial, and the English application of the privilege seems to have been intimately associated with political and religious expression and crimes of conscience. Id. at 332; Fausett, supra at 703. As stated by Professor Levy, “In the broadest sense it was a protection not of the guilty, or of the innocent, but of freedom of expression, of political liberty, of the right to worship as one pleased.” Levy, supra at 332. As soon as the right was secured, it became academic to the accused at the trial stage due to the development of the disqualification for interest of the accused in criminal trials, and of all parties to civil actions, preventing them from testifying under oath. Anyone having a stake in the outcome of a trial was considered to be so tempted to commit perjury that his testimony was disqualified as inherently unreliable. Id. at 324. After the promulgation of the disqualification rule, the right’s importance for the accused was limited to the preliminary examination, to which it was not statutorily applied until 1848. Id. at 325, 329; Friendly, supra at 678. In the 1640s, the right of the accused to avoid self-incrimination took the form of a rule against coerced or compelled confessions, which emerged as the principal defense against confessions and pleas extracted by torture or compulsion. Levy, supra at 326-28. The right was broadly construed in other contexts by English courts and, by the end of the English Revolution, pertained to witnesses as well as the accused, and could be invoked merely to avoid defamation of character. Urick, supra at 115; Levy, supra at 317. The development of the right in the American colonies was inconsistent and difficult to trace in the seventeenth century. However, from its first appearance until the drafting of the Constitution, American law steadily adopted the broad construction of the English common law sources. Urick, supra at 116; Levy, supra at 333-67. Gradually, as the legal profession expanded in the eighteenth century through English-trained lawyers and English law books, the practice of law, imitative of the English model, became consistent throughout the colonies. Levy, supra at 368-69. By the time of the American Revolution, in this country, as in England, the right applied to attempts to gain confessions. Urick, supra at 123. Moreover, also as in England, the usual context for its invocation was a political trial involving crimes of conscience. Levy, supra at 368-404. The privilege achieved formal sanction and codification when it was incorporated, without debate, into the procedural protections afforded an accused at criminal trial under the Fifth Amendment to the United States Constitution. 2. LANGUAGE OF THE PRIVILEGE IN THE BILL OF RIGHTS The Fifth Amendment of the United States Constitution reads in relevant part: No person ... shall be compelled in any criminal case to be a witness against himself. The privilege, thus, protects a person from being compelled in a criminal proceeding to speak against his interests. There is no specification as to the person being compelled; he may be the accused or a witness. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). Moreover, the language of the clause limits the type of information only in that it must be adverse to the interests of the claimant. As stated by Professor Levy, The right not to be a witness against oneself imports ■ a principle of wider reach, applicable, at least in criminal cases, to the self-production of any adverse evidence, including evidence that made one the herald of his own infamy, thereby publicly disgracing him. Levy, supra at 427. Taken alone, then, the language itself seems to favor a broad interpretation of the privilege. The courts, however, have not uniformly interpreted the clause in this manner. Rather, they have limited its protection to information which may be used in a criminal trial, as opposed to a civil proceeding. They have similarly proscribed invocation of the privilege to prevent against shame, public humiliation, or even physical danger. See Lefkowitz v. Turley, 414 U.S. 70, 78-79, 94 S.Ct. 316, 322-23, 38 L.Ed.2d 274 (1973); Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656-57, 32 L.Ed.2d 212 (1972); Heike v. United States, 227 U.S. 131, 144, 33 S.Ct. 226, 228, 57 L.Ed. 450 (1913); Brown v. Walker, 161 U.S. 591, 599-600, 16 S.Ct. 644, 647-48, 40 L.Ed. 819 (1896). The phrase “in any criminal case” appears to have been an afterthought. James Madison, the author of the original draft proposal of the right, proposed that the right be applied both to civil and criminal proceedings, and to all stages of the legal process. Levy, supra at 423. His version read as follows: “no person ... shall be compelled to be a witness against himself.” Id. Madison did not explain his choice either at the time of promulgation or in his later writings, but it is clear from the language chosen that he intended the amendment to encompass the broadest possible formulation of the privilege. Id. Madison’s proposal almost certainly applied to every stage of a criminal and civil trial, and extended to any other type of governmental inquiry. Id. The version of the amendment that finally passed, unanimously and without discussion, confined the privilege to persons compelled to testify in the context of exposure to criminal liability. It protected any person in the criminal proceeding, witness or defendant, and applied at all stages of the proceeding, from arrest to indictment and trial. Id. Subsequent Supreme Court decisions have further clarified the issue of when, and in which proceedings, the privilege may be invoked. In Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138 (1920), the Court held that the privilege applied to a witness in a civil action (bankruptcy proceeding), and the courts now treat the privilege as protecting a party or witness from compelled testimony in any proceeding, civil or criminal, so long as the information sought could later be used against that person in a criminal proceeding. Lefkowitz v. Turley, 414 U.S. 70, 78-79, 94 S.Ct. 316, 322-23, 38 L.Ed.2d 274 (1973); McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924); Friendly, supra at 677; Levy, supra at xii. 3. POLICIES BEHIND THE PRIVILEGE As is evident from the preceding discussion, the Fifth Amendment privilege is not easily reduced to a singular policy or purpose, but is ephemeral and eludes crisp summarization. That the privilege is not easily packaged into one clearly formed policy rationale is a testament to its profound relationship to many of our most cherished ideals. “The fundamental value reflected by the Fifth Amendment ‘is intangible, it is true; but so is liberty, and so is man’s immortal soul. A man may be punished, even put to death, by the state; but ... he should not be made to prostrate himself before its majesty. Mea culpa belongs to a man and his God. It is a plea that cannot be extracted from free men by human authority. To require it is to insist that the state is the superior of the individuals who compose it, instead of their instrument.’ ” Levy, supra at 431 (quoting Fortas, “The Fifth Amendment: Nemo Tenetur Prodere Seipsum,” Cleveland Bar Association, The Journal, XXV (April 1954), 91, at 98-100, passim) It is undisputed, however, that the privilege both protects the right of the individual from interference by the government and prevents the government from interfering with the individual. In fact, these two facets of the privilege are indissoluble. The issue before the Court, then, though complicated, can be framed rather neatly: Whether the right not to be a witness against oneself was intended to inhere in the individual as one of those fundamental rights individuals possess under the American Constitution or whether it was intended simply as a limitation upon the United States government in its relations with its citizenry. It is this Court’s firm conviction that the Fifth Amendment, in both language and intent, was meant to inhere in the individual and to be available to the individual to protect against unlawful compulsion by any government, regardless of the fortuitous nature of the jurisdiction involved. The Court reaches this view, in great measure, by the very language of the Amendment itself. The entire focus of the language of the privilege, as set forth in the Amendment, is upon the individual and his fundamental right to be free from governmental overreaching and excess. In this, the privilege against self-incrimination goes to the very heart of the ideas and beliefs underlying the establishment of this country. At its core, the privilege states that the individual is the master of the government and, thus, the government may not use its power to dominate the individual. As observed by Professor Levy: The framers of the Bill of Rights saw their injunction, that no man should be a witness against himself in a criminal case, as a central feature of the accusatory system of criminal justice. While deeply committed to perpetuating a system that minimized the possibilities of convicting the innocent, they were not less concerned about the humanity that the fundamental law should show even to the offender. Above all, the Fifth Amendment reflected their judgment that in a free society, based on respect for the individual, the determination of guilt or innocence by just procedures, in which the accused made no unwilling contribution to his conviction, was more important than punishing the guilty. Levy, supra at 432. Beyond this, the Court is struck by the simplicity and directness of the language chosen by the Framers of the Bill of Rights, and believes that this language ought to be given its plain and ordinary meaning and not be tortured or overana-lyzed so as to reach an unintended or artificial result. The language used states: “No person ... shall be compelled in any criminal case to be a witness against himself.” (Emphasis added.) The language stresses “any” criminal case; it is not limited to certain criminal proceedings, nor is it limited to domestic criminal cases. It says “any” criminal case, not “any domestic criminal case.” 4. TREATMENT OF THE PRIVILEGE IN THE COURTS In Murphy v. Waterfront Com. New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964), the Supreme Court held that the privilege against self-incrimination could be invoked to prevent the federal government from using information garnered by state prosecutors in a state prosecution. In so ruling, the Court put its imprimatur on the fundamental nature of the privilege. It was not dependent on the laws or constitution of a particular jurisdiction, but was rather a fundamental right guaranteed by the United States Constitution to all persons under its protections. Justice Goldberg, speaking for the majority, observed that the privilege against self-incrimination represents many fundamental values and aspirations. It is “an expression of the moral striving of the community_a reflection of our common conscience....” That is why it is regarded as so fundamental a part of our constitutional fabric, despite the fact that “the law and lawyers ... have never made up their minds just what it is supposed to do or just whom it is intended to protect.” Murphy, 378 U.S. at 55, 84 S.Ct. at 1596 (citations omitted). In Murphy, the Supreme Court set forth many of the fundamental concerns underlying the Fifth Amendment privilege: The privilege against self-incrimination “registers an important advance in the development of our liberty — ‘one of the great landmarks in man’s struggle to make himself civilized.’ ” Ullmann v. United States, 350 U.S. 422, 426 [76 S.Ct. 497, 500, 100 L.Ed. 511 (1956) ]. It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates “a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,” 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life,” United States v. Grunewald, 233 F.2d 556, 581-582 (Frank, J., dissenting), rev’d 353 U.S. 391 [77 S.Ct. 963, 1 L.Ed.2d 931 (1957) ]; or distrust of self-deprecatory statements; and our realization that the privilege, while sometimes “a shelter to the guilty,” is often “a protection to the innocent.” Quinn v. United States, 349 U.S. 155, 162 [75 S.Ct. 668, 673, 99 L.Ed. 964 (1955)]. Murphy, 378 U.S. at 55, 84 S.Ct. at 1596-97 (footnote omitted). The most persuasive of these concerns can be distilled into three policies, all related to the fear of governmental abuse or excess: (1) the belief that the government should not force a person to choose among self-accusation, perjury, and contempt; (2) the desire to curb the excesses of prosecutorial zeal; and, (3) the inherent distrust of self-incriminating statements. See also Note, Testimony Incriminating Under the Laws of a Foreign Country — Is There a Right to Remain Silent? 11 N.Y.U. J. Int’l L. & Pol. 359 (1978). Justice Goldberg relied, in part, on these policies when he ruled that the privilege applies to a state prosecution when the claimant fears criminal prosecution in a federal proceeding. He observed that the policies would be defeated were a witness able to be “whipsawed” into incriminating himself in a foreign jurisdiction. Murphy, 378 U.S. at 54, 84 S.Ct. at 1596. This “whipsaw” effect does not end at our borders but is equally relevant when the prosecuting body is a foreign nation instead of a state. The Court also reinterpreted precedent, both English and American, to find that the privilege had been misinterpreted by prior Supreme Court decisions. As for the English precedent, Justice Goldberg cited four cases, two decided before the advent of the Constitution and two decided approximately sixty years after. In the two pre-Consti-tution cases, the English courts held that the privilege applied to foreign prosecutions. In the first case, East India Co. v. Campbell, 1 Ves. sen. 246, 27 Eng.Rep. 1010, decided in 1749, the defendant refused to reveal certain information to an English court on the ground that it might subject him to punishment in the courts of India. The court unanimously ruled that the privilege against self-incrimination protected the defendant from revealing information which could be used to convict him in the other jurisdiction. The second case is Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng.Rep. 157, decided in 1750. The defendant refused to reveal to the court whether she was lawfully married to a certain person on the ground that if she admitted to marriage, she would be confessing to an act which, though legal under the common law, would render her liable to prosecution in an ecclesiastical court. Murphy, 378 U.S. at 58-59, 84 S.Ct. at 1598-99. In their brief and at oral argument, the creditors attempted to distinguish these cases from the instant case by alleging that the two English cases involved jurisdictions under the legislative sovereignty of the English laws. Yet a review of those opinions suggests that the English courts viewed the trying bodies as distinct and independent entities. The court in Browns-word addressed the ecclesiastical court as though it were a separate body: “The ecclesiastical court has conusance of incest in two respects, diverso intuitu: first to judge of the legality of the marriage, and to pronounce sentence of nullity; and if they do so, proceeding lawfully and rightfully, it binds all parties, being the judgment of a court having proper jurisdiction of the cause.” Brownsword, 2 Ves. sen. at 158. In East India Co., the court is even more clear in delineating the Indian court as a separate institution: Then the rule is, that this court shall not oblige one to discover that, which, if he answers in the affirmative, will subject him to the punishment of a crime; for it is not material, that, if he answers in the negative it will be no harm; and that he is punishable appears from the case of Omichund v. Barker [1 Atk. 21], as a jurisdiction is erected in Calcutta for criminal facts; where he may be sent to government and tried, though not punishable here: like the case of one who was concerned in a rape in Ireland, and sent over there by the government to be tried, although the court of B.R. here refused to do it: which was founded on a case in 2 Ven. for the government may send persons to answer for a crime wherever committed, that he may not involve his country; and to prevent reprisals. East India Co., 1 Ves. sen. at 1011 (emphasis added). Thus, the two decisions on this issue before the advent of our Constitution expanded the privilege to prosecutions conducted in non-domestic jurisdictions. The two later English cases cited by the majority in Murphy seem contradictory. In King of Two Sicilies, 1 Si