Merryman and Quirin cases shed a bit of light, not on surveillance, but on habeas. There are a few others I think.
The argument can certainly be made that we can kill al Qaeda where ever we find them. Nevertheless, I think for prudential and political reasons the government would try to make an arrest if circumstances permitted.
That urge to arrest is what creates entry into the court system and all the supervision and second guessing that entails. Again, in the area of detention, we have a few cases working their way. Padilla comes right to mind.
It's really fascinating to see the friction and maneuvering between the foreign intelligence and criminal sides of our battle against those who would harm our citizens and subvert our form of government. I don't pretend to have any quick solutions either, particularly not since this whole area of academic investigation is very new to me, and I only do it as a hobby.
Thanks for the dialog - it's the first time I've interacted with a celebrity. ;-)
Part of the problem is that very few people have experience with this type of thing. Few lawyers study Constitutional law to begin with, and fewer still the Constitution itself. And even fewer have studied either the specific interfaces between the military and the civil authorities, and non-Congressional warmaking powers. To that extent, people often have difficulty understanding that POWs are not held for punishment sake, but to detain them from pursuing war - and thus are both not tried, and not prosecuted for being a foreign soldier. Further, is the general misunderstanding of the Geneva Conventions, and that the privileges enumerated are applied only to those who abide by its rules.
It is an entirely different vantagepoint from what is presented in government classes and in law school.
The last time this wasn't esoteric minutiae was WWII, and those who would remember it directly would be in their 80s.