One of the most encouraging developments of this presidential campaign was that it looked like the United States had begun to turn the page on the disastrous detainee policies of the Bush administration. With so much attention focused on the Republican and Democratic nominating contests, President Bush was almost an afterthought. Furthermore, Super Tuesday narrowed the field of candidates with any chance of becoming president to three—Democratic Senators Hillary Clinton and Barack Obama and Republican Senator John McCain—all of whom had advocated closing Guantanamo and banning torture. It seemed we were at the beginning of the end of this sad chapter in American history.

Yet not to be outdone, the Bush administration jumped back onto the front pages with more controversy. Slipped in amid all the excitement of Super Tuesday was the stunning admission from the CIA Director Michael Hayden that the United States had used waterboarding on three detainees in 2002 and 2003. That was quickly followed with last week’s news that six Guantanamo detainees, including at least one that was waterboarded, would soon be charged in military commissions and will likely face the death penalty if convicted.

More than six years into its existence, Guantanamo has had more suicides than convictions, with only David Hicks’ plea bargain to show for all the resources thrown at the prison, and he is already out of jail. The speedy conclusion of that case was borne more out of political convenience than a sound adjudicative system, and the commissions have not even held a successful arraignment as the first two cases brought before them were dismissed because of a technical flaw in the procedures. Now the Bush administration has chosen to proceed directly to the most difficult of all cases, those involving the prospect of capital punishment. They are recklessly rolling the dice in a completely untested and flawed system in the first trials of individuals implicated in the mass murder of 3,000 people.

Even in normal circumstances, these trials would be among the most complicated and difficult ever held with months of pre-trial motions and discovery. Making matters worse, the government has admitted waterboarding one of the defendants, Khalid Sheik Mohammed, a practice the United States used to prosecute as a war crime. Throw in another legal challenge to the commissions that has reached the Supreme Court with a decision expected in the next few months, and no one in the Defense Department actually believes these six defendants will be tried before the Bush administration ends on January 20, 2009.

This brings us back to the remaining presidential candidates. Change is driving the Democratic party race and the Republicans have nominated the one among them who has the reputation as a maverick and had consistently defied the Bush administration on its detainee policies in the Senate. But John McCain’s journey to the nomination witnessed the rejection or reversal of some of his earlier positions that set him apart from his Republican colleagues. Surely, however, the survivor of the Hanoi Hilton would not go back on his commitment against torture?

Yet how else to explain his vote last Thursday against a bill that would prohibit the CIA from using ‘enhanced’ interrogation techniques and restrict it to the approved methods in the Army Field Manual on Interrogations. Michael Hayden’s vivid description of the CIA’s version of enhanced interrogation techniques should still have been fresh in his mind, but he still voted to sustain them. McCain’s flip-flopping on torture calls into serious question his previous commitment to close Guantanamo. Just when we thought this nightmare might be almost over, its conclusion may still hinge on who wins in November.