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X.  Practical Justifications for Exemption

First, it must be remembered that both Title III and FISA permit delayed applications for warrants, after surveillance has begun.  Also, the case law has long permitted law enforcement action to proceed in cases in which the lives of officers or others are threatened in cases of “hot pursuit”, border searches, school locker searches, or where emergency situations exist.  See generally Warden v. Hayden, 387 U.S. 294 (1967); Veronia School District v. Acton, 515 U.S. 646

⁵²See generally Youngstown, 343 U.S. 579 (1952)

⁵³See generally Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934)

⁵⁴See generally Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982)

⁵⁵See generally Zweibon, 516 F.2d 594 (D.C. Circ. 1975)

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(1995); and Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).

Indeed, in Zweibon, Judge Wright enumerates a number of Defendants’ practical arguments here  (including  judicial  competence,  danger  of  security  leaks,  less  likelihood  of  criminal prosecution, delay, and the burden placed upon both the courts and the Executive branch by compliance) and finds, after long and careful analysis, that none constitutes adequate justification for exemption from the requirements of either FISA or the Fourth Amendment. Zweibon, 516 F.2d at 641.  It is noteworthy, in this regard, that Defendants here have sought no Congressional amendments which would remedy practical difficulty.

As long ago as the Youngstown case, the Truman administration argued that the cumbersome

procedures required to obtain warrants made the process unworkable.⁵⁶  The Youngstown court made

short shift of that argument and, it appears, the present Defendants’ need for speed and agility is

equally weightless.  The Supreme Court in the Keith⁵⁷, as well as the Hamdi⁵⁸ cases, has attempted

to offer helpful solutions to the delay problem, all to no avail.