We still have no indication whether the Justice Department will appeal the US District Court ruling finding the military’s Don’t Ask Don’t Tell policy unconstitutional. In the meantime, Congress will try to put the finishing touches on a legislative repeal of the policy. But two Senators, mindful of using every avenue possible to end the discharges, are advocating that the Justice Department drop the lawsuit and let the ruling stand.

Sen. Mark Udall (D-CO) and Kirsten Gillibrand (D-NY) have written Attorney General Eric Holder to ask that his agency not appeal the decision from Judge Virginia Phillips. Several experts believe that the DoJ has no obligation to defend the policy, and all of the principals in the executive branch: the Secretary of Defense, the Chairman of the Joint Chiefs and the President – oppose it. Udall and Gillibrand agree, and use part of the judge’s ruling as part of their evidence:

The following quote from the judge’s decision captures the overwhelming reason why the decision should stand: “Among those discharged were many with critically needed skills … Far from furthering the military’s readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest.” As one of many criteria that the Justice Department will examine in deciding whether to appeal a potential permanent injunction to this policy, we ask that you examine whether or not an appeal furthers a legitimate governmental interest. We would say any appeal does not.

This does not mean that Udall and Gillibrand now want to go a judicial rather than a legislative route; in fact, they say later that “only action by Congress can bring real finality to this issue.” But dropping the appeal would not only send a powerful message, it would help with the efforts in the Senate and move the country forward on a key civil rights issue.

The full letter is on the flip.

Dear Mr. Attorney General, 
 
We are writing to bring to your attention the recently issued decision of Judge Virginia A. Phillips of the United States District Court of the Central District of California in Log Cabin Republicans v. United States, which declared that the “Don’t Ask, Don’t Tell” (DADT) underlying law violates the U.S. Constitution’s guarantees of due process and free speech, thereby rendering DADT unconstitutional.   In light of important national security concerns, we respectfully request that you, in your capacity at the Department of Justice, refrain from appealing this decision or any permanent injunction which may be granted against this law in the near future. 
 
The following quote from the judge’s decision captures the overwhelming reason why the decision should stand:  “Among those discharged were many with critically needed skills … Far from furthering the military’s readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest.”  As one of many criteria that the Justice Department will examine in deciding whether to appeal a potential permanent injunction to this policy, we ask that you examine whether or not an appeal furthers a legitimate governmental interest.  We would say any appeal does not.
 
Additionally, DADT harms military readiness, as well as the morale and the cohesiveness of our armed forces, at a time when our military’s resources are strained and unity is critically important.  For every person discharged after ten years of service, six new servicemembers would need to be recruited to recover the level of experience lost by that discharge. This not only weakens our military, but neither is it an effective use of our government resources or taxpayer monies.
 
President Obama, Defense Secretary Robert M. Gates and Admiral Mike Mullen, chairman of the Joint Chiefs, have all publicly advocated for the repeal of this harmful law.  There is no legal or military justification and not one shred of credible evidence that supports continuing the discriminatory DADT law, and considering the guidance of the commander-in-chief and the nation’s top two defense officials, we urge you to refrain from seeking an appeal.  The federal court decision was a step in the right direction, and we are confident that the Senate will take the ultimate step by voting this fall on the fiscal year 2011 National Defense Authorization Act to permanently lift the ban on gays in the military. Although we understand that only action by Congress can bring real finality to this issue, we believe an appeal of the recent federal court decision could set back those congressional efforts.  Therefore, we request your assistance in ensuring that we can eradicate this discriminatory law permanently and urge the Justice Department to choose not to appeal any court decision that would keep this law in place. 
 
Thank you for your attention to this urgent matter.  We look forward to hearing from you.