In order to have standing, one must prove that a favorable ruling would provide relief. Mayfield wanted information kept by the government from house searches to be destroyed, and the gov't argued that even if the FISA ammendments and PATRIOT act provisions were declared unconstitutional, that this information could still be kept.
Two arguments are pointed out:
>a Fourth Amendment violation occurs at the moment of the illegal search or seizure, and that the subsequent use of the evidence obtained does not per se violate the Constitution
>the Fourth Amendment does not provide a retroactive remedy for illegal conduct
The first point is based off of this case(http://www.casebriefs.com/blog/law/criminal-procedure/crimin...)... it basically says that the notion of illegal evidence only exists in a criminal court setting. In the case mentioned (concerning parole hearings, which are administrative hearings), this evidence can still be admitted. The argument can then continue that the gov't can hold onto the information, they just are not allowed to present it in court (supposedly).
I am not sure of this interpretation, but that was the argument.
I'm not trying to say the state of affairs is OK, I'm saying that even with the FBI's craziness, the courts exist as that final checkpoint where all this can end up being reversed.
Is that all you're worried about? This article points out some of the problems of being arrested, like concern that others in the jail will find that the arrestee is accused of being a terrorist. There's also the social taint of being so named, which may make employment more difficult.
Even without arrest, there's still the stress of knowing that one is being observed. See what happened to Steven Hatfill, a "person of interest" in the anthrax attacks of 2001, who was never arrested.
Then there's the issue that some huge majority of convictions (95+%?) are plea bargained, and where the prosecutor's strategy is to give as many charges as possible, so it's in the interest of the defendant to plead guilty to a few of the lesser ones rather than the much more expensive trial needed to defend all of the charges.
Also, there's a strong desire to not question a judgement, keep the case open, and preserve information which might otherwise lead to a reversal. Quoting Wikipedia: "In the case of Joseph Roger O'Dell III, executed in Virginia in 1997 for a rape and murder, a prosecuting attorney argued in court in 1998 that if posthumous DNA results exonerated O'Dell, "it would be shouted from the rooftops that ... Virginia executed an innocent man." The state prevailed, and the evidence was destroyed."
We know there's, what, over 300 overturned convictions based on DNA evidence (meaning, that's limited to only those cases where there was physical evidence that could be used).
All this should be evidence that 1) using court judgements is ignoring a large part of the issue, 2) the trial must not be the final checkpoint, and 3) the legal system is not set up to help aid post-trial exonerations.
Maybe bizarre, but true -- consider how many people have been proven innocent and released after sometimes serving decades for crimes they didn't commit.
http://www.innocenceproject.org/Content/DNA_Exonerations_Nat...
Quote: "There have been 312 post-conviction DNA exonerations in the United States."
The above refers only to people proven innocent using DNA analysis. It's certain that many more innocent people remain incarcerated for whom no DNA evidence exists (or has been retained since the investigation) to prove their innocence.
> The only reason he might not be a free man would be that the court system can be very slow.
False. There are many ways to convict a person besides incontrovertible direct evidence of guilt. Here's my favorite:
http://www.theargus.co.uk/news/1764562.man_served_six_years_...
In summary, a man was convicted of rape by a pathological liar and thrown in jail, served six years and was finally released after his accuser went on to serially accuse many other men of imaginary sex crimes. The woman was admonished by the court and released without serving any time.
And the anti-terror system is constructed to specifically avoid the process of a suspect appearing in front of a judge and being innocent until proven guilty. See, for instance, Guantanamo bay.
Of course the burden of proof for investigating someone's behavior is lower than to get a conviction: if it wasn't, why would there be investigations? I don't want to defend the FBI's idiotic handling of this (namely ignoring all the evidence against the theory), but acting like the FBI has sole discretion to throw someone into prison with so much evidence against their theory is very bizarre.
The only reason he might not be a free man would be that the court system can be very slow.