The issue surrounds Section 7 of the MCA, titled "Habeas Corpus Matters." That section has two subsections.  Subsection (a) repeals the existing subsections (e) of 28 U.S.C. § 2241 (both of them) and enacts this new one:

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The first of these subsections quite unambiguously repeals habeas jurisdiction. The only question would be whether it applies to pending cases. Subsection (b) says this:

(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

The Al Odah brief claims that this language does not apply to habeas because in the legislative history Congress considered but did not enact language that referred to "any claim or cause of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment...." This hardly creates an ambiguity in the language Congress did enact. The Al Odah brief claims, "As enacted, § 7(b) refers to the 'other actions' encompassed by newly-amended § 2241(e)(2), but not those encompassed by newly-amended § 2241(e)(1)." That assertion simply cannot be reconciled with the subsection's explicit inclusion of "all cases, without exception." To read that phrase as excluding habeas petitions, one would have to conclude either that a habeas petition is not a "case" or that "without exception" allows an exception. Neither proposition is tenable. Of course a habeas petition is a "case."  See Hohn v. United States, 524 U.S. 236, 241 (1998).

The context in which this language appears also matters. 28 U.S.C. § 2241 is the primary habeas jurisdiction statute. Subsections (a) and (c) are the direct descendants of the historical habeas acts in the Judiciary Act of 1789, the Force Bill of 1833, and the acts of 1842 and 1867. Section 7 of the MCA is titled "Habeas Corpus Matters."  To say that the retroactivity portion of this section does not apply to habeas corpus cases despite its inclusion of "all cases" is doubly absurd when the context is considered.

The doctrine of constitutional avoidance only applies when the statute can reasonably be construed to avoid the constitutional question. It does not authorize the judiciary to twist a statute beyond recognition. "The canon is thus a means of giving effect to congressional intent, not of subverting it." Clark v. Martinez, No. 03–878 (2005). The question of whether the constitutional privilege of habeas corpus extends to alien enemies is squarely presented and cannot be avoided. For the reasons stated in our Hamdan brief, the answer is no.