. . . And National Security Questions

FAIRFAX What a difference a year makes.

President Barack Obama is embracing the Bush-era counterterrorism measures that, as a candidate, he repeatedly denounced. Now that he's nominated Judge Sonia Soto mayor to the Supreme Court, the Senate should make sure the new justice won't hamstring lawful efforts to keep our nation secure.

At times it seems President Obama is cribbing from George W. Bush's playbook. The policy of trying suspected terrorists before military commissions -- which candidate Obama once called "a legal black hole" -- is back, with a few cosmetic changes. "Military commissions have a history in the United States dating back to George Washington and the Revolutionary War," the president now assures us.

The facility at Guantanamo Bay is slated for closure, but the president wants to preserve indefinite military detention elsewhere, like Afghanistan. Coercive interrogations have been banned, but the administration will use "extraordinary rendition" to hand over detainees to allies with fewer scruples.

The president now supports aggressive efforts to eavesdrop on the phone calls and e-mails of terrorists overseas. And he has stepped up the pace of Predator missile strikes in Afghanistan and Pakistan.

Meet the new boss. Same as the old boss.

IT'S NOT HARD to guess why President Obama has had a change of heart. He's discovered that simplistic campaign slogans are inadequate for the business of actually governing. The United States faces a brutal, determined enemy in al-Qaida, and the commander-in-chief requires flexibility to meet the threat.

Yet if the president has done an about-face, the courts are still marching in the same direction. In recent years, courts have begun to whittle away at the national security powers of the president and Congress. Unelected and unaccountable judges are playing an increasingly active role in deciding what steps may be taken to protect this nation from its enemies.

Last summer, in the Boumediene case, the Supreme Court held that foreign terrorism suspects at Guantanamo Bay are entitled to sue their captors -- even though Congress had enacted legislation specifically forbidding courts from hearing these cases.

The court didn't just snub Congress, it also sidestepped its own precedents. In 1950, the court ruled that Nazi war criminals detained outside the U.S. had no right to sue. Back then, it understood that lawsuits would divert the government's "efforts and attention from the military offensive abroad to the legal defensive at home," which would be "highly comforting to enemies of the United States."

NOR IS THE problem limited to Gitmo. In April, a federal judge in Washington, D.C., held that some detainees at Bagram Air Base in Afghanistan can sue for their release.

These sorts of national security decisions should be left to Congress and the president for a simple reason: accountability.

Suppose elected officials let a terrorist go free and the unthinkable happens -- another attack takes place. The American people have an easy remedy. They can vote those officials out of office. But if it's a judge who makes the decision, voters have to live with it. There's no way to hold the judge accountable, because courts -- quite properly -- are insulated from political pressures.

The flip side of the coin is that judges must leave political decisions to the politicians.

Now that Judge Sotomayor has been tapped for the Supreme Court, the Senate should scrutinize her record to make sure she has an appropriately modest understanding of the judicial role. The Supreme Court is not a super-legislature. Its job is not to second-guess Congress and the president's counterterrorism policies. Instead, its task is to faithfully enforce clear constitutional commands and, where the Constitution is silent, to stay out of the political branches' way.

The president has promised to bring hope and change to Washington. On national security, let's hope he changes the direction of the Supreme Court.

Nathan Sales is a law professor at George Mason University. He served at the Department of Justice and as deputy assistant secretary at the Department of Homeland Security under President George W. Bush. Contact him at .