77 Members of Congress, writing to President Barack Obama, have asked that he direct the Defense Department to stop implementation and execution of orders under Don’t-Ask-Don’t-Tell while Congress begins efforts to actually repeal the law underlying the policy. The Palm Center agrees that the President has this power and can move unilaterally.

The letter does not call for an executive order halting discharges but rather a change in how the policy is implemented within the Department of Defense.

"It is a presidential moratorium, it is a significant presidential action, but it’s not an executive order," said Christopher Neff, political director at the Palm Center, a research institute at University of California, Santa Barbara. "They basically want the military to disregard anyone who ‘tells’ [of someone's sexuality] as long as there isn’t a [Uniform Code of Military Justice] violation or something criminal."

Defense Secretary Gates, speaking last week, doubts much can be done until the law itself is changed:

Secretary of Defense Robert M. Gates, asked about the policy last week, made it clear that he believes it is ultimately up to the Congress to reverse it and that the administration has few options unless it repeals the law.

"Until the law is changed, our ability to change the policy is extremely limited, if not nonexistent," Gates said.

Here is the full letter, from the website of the author, Florida Congressman Alcee Hastings:

June 22, 2009

The Honorable Barack H. Obama

President of the United States

The White House

Washington, D.C. 20500

Dear President Obama:

The United States of America prides itself on having the finest military in the world because of the hard work, dedication, and sacrifices of our brave servicemen and women. And yet, under 10 U.S.C. § 654 (Policy Concerning Homosexuality in the Armed Forces), better known as "Don’t Ask, Don’t Tell," the talents and contributions of our openly gay, lesbian, bisexual, and transgender (LGBT) service members continue to be ignored simply because of who they are. Every day, we lose approximately two service members to this misguided, unjust, and flat-out discriminatory policy. Don’t Ask, Don’t Tell is not only an injustice to them, but a disservice to the U.S. military and our country as a whole.

As you know, Don’t Ask, Don’t Tell was signed into law in 1993 by former President Bill Clinton as a compromise to allow gay and lesbian service members to serve in the military – so long as they did not disclose their sexual orientations. Fifteen years later, Don’t Ask Don’t Tell is instead negatively impacting the lives and livelihoods of these military professionals and depriving our Armed Forces of their honorable service. Since you took office on January 20, 2009, more than 250 gay and lesbian service members have been discharged under this law, which continues to undermine and demoralize the more than 65,000 gay and lesbian Americans currently serving on active duty.

Although we are confident that you will remain true to your campaign promise to end Don’t Ask, Don’t Tell, our LGBT service members and our country’s national security will continue to suffer if initial action is delayed until 2010 or 2011. We urge you to exercise the maximum discretion legally possible in administering Don’t Ask, Don’t Tell until Congress repeals the law. To this end, we ask that you direct the Armed Services not to initiate any investigation of service personnel to determine their sexual orientation, and that you instruct them to disregard third party accusations that do not allege violations of the Uniform Code of Military Justice. That is, we request that you impose that no one is asked and that you ignore, as the law requires, third parties who tell. Under your leadership, Congress must then repeal and replace Don’t Ask, Don’t Tell with a policy of inclusion and non-discrimination. This bilateral strategy would allow our openly gay and lesbian service members to continue serving our country and demonstrate our nation’s lasting commitment to justice and equality for all.

As the United States continues to work towards responsibly ending the War in Iraq and refocus on the threat from al Qaeda in Afghanistan and Pakistan, our LGBT service members offer invaluable skills that enhance our country’s military competence and readiness. Despite the great strain on our military’s human resources, the Armed Forces have discharged almost 800 mission-critical troops and at least 59 Arabic and nine Farsi linguists under Don’t Ask, Don’t Tell in the last five years. This is indefensible. The financial cost alone of implementing Don’t Ask, Don’t Tell from Fiscal Year 1994-2003 was more than $363.8 million. Our nation’s military has always held itself to the highest standards, and we must recruit and retain the greatest number of our best and brightest. To do anything less only hurts our country’s military readiness and our service members.

We also want to bring to your attention the most recent examples of the failed Don’t Ask, Don’t Tell policy in action. New York National Guard First Lieutenant Dan Choi and Air Force Lieutenant Colonel Victor Fehrenbach are two exceptional servicemen who have dedicated their lives to defending our country and protecting the American people. Their bravery and abilities have been tested in combat, and now they face impending discharge under Don’t Ask, Don’t Tell.

First Lieutenant Choi, a current National Guardsman with the 1st Battalion of the 69th Infantry in Manhattan, is a West Point graduate, Arabic language specialist, and Iraq War veteran who is under investigation for refusing to lie about his identity.

Lieutenant Colonel Fehrenbach, Assistant Director of Operations for the 366th Operations Support Squadron at Mountain Home Air Force Base in Idaho, has honorably served his country for 18 years as an F-15E pilot. He has received nine air medals, including a Medal for Heroism during the 2003 invasion of Iraq, and was hand-picked to protect the airspace over Washington, D.C. after the Pentagon was attacked on September 11, 2001. Lieutenant Colonel Fehrenbach, who has flown combat missions in Iraq and Afghanistan against the Taliban and al Qaeda, continues to serve while the recommendation for his honorable discharge moves forward to a review board, and eventually to the Secretary of the Air Force. Just two years away from his 20-year retirement, he stands to lose $46,000 a year in retirement and medical benefits for the rest of his life if discharged.

The American people and service members of the Armed Forces overwhelmingly support the repeal of Don’t Ask, Don’t Tell. According to a national Gallup poll conducted in May 2009, 69 percent of Americans, including 58 percent of Republicans, favor allowing openly gay men and lesbian women to serve in the military. Furthermore, a 2006 poll of 545 troops who served in Iraq and Afghanistan by Zogby International and the Michael D. Palm Center at the University of California, Santa Barbara revealed that 73 percent are personally comfortable with gay men and lesbian women. John Shalikashvili, former Chairman of the Joint Chiefs of Staff during the Clinton administration, and more than 100 retired admirals and generals support this repeal, in addition to the Human Rights Campaign, the Servicemembers Legal Defense Network, and Knights Out, an organization of LGBT West Point alumni co-founded by First Lieutenant Choi.

Mr. President, we cannot afford to lose any more of our dedicated and talented service members to Don’t Ask, Don’t Tell. On behalf of First Lieutenant Choi, Lieutenant Colonel Fehrenbach, and the more than 12,500 gay and lesbian service members who have been discharged since Don’t Ask, Don’t Tell was implemented in 1994, we stand ready to assist you in repealing this dishonorable and debilitating law as soon as possible, and in restoring justice and equality in our Armed Forces.

Please know that we will continue to monitor this situation and are hopeful that, together, we can address this urgent issue soon. Thank you for your consideration and we look forward to your response.

Sincerely,

The letter was authored by Rep. Hastings and signed by Representatives Barney Frank (D-MA), John Conyers, Jr. (D-MI), Fortney "Pete" Stark (D-CA), Edward J. Markey (D-MA), Gary Ackerman (D-NY), Louise Slaughter (D-NY), Eliot Engel (D-NY), Jim McDermott (D-WA), Ileana Ros-Lehtinen (R-FL), José Serrano (D-NY), James Moran (D-VA), Jerrold Nadler (D-NY), Eleanor Holmes Norton (D-DC), Ed Pastor (D-AZ), James Clyburn (D-SC), Anna Eshoo (D-CA), Bob Filner (D-CA), Luis Gutierrez (D-IL), Eddie Bernice Johnson (D-TX), Carolyn Maloney (D-NY), Robert "Bobby" Scott (D-VA), Bennie Thompson (D-MS), Nydia Velázquez (D-NY), Melvin Watt (D-NC), Lynn Woolsey (D-CA), Lloyd Doggett (D-TX), Chaka Fattah (D-PA), Jane Harman (D-CA), Lois Capps (D-CA), Donna M. Christensen (D-VI), Diana DeGette (D-CO), Bill Delahunt (D-MA), Carolyn Cheeks Kilpatrick (D-MI), Dennis Kucinich (D-OH), Barbara Lee (D-CA), James McGovern (D-MA), Brad Sherman (D-CA), Robert Wexler (D-FL), Tammy Baldwin (D-WI), Shelley Berkley (D-NV), Michael Capuano (D-MA), Joseph Crowley (D-NY), Rush Holt (D-NJ), John Larson (D-CT), Grace Napolitano (D-CA), Jan Schakowsky (D-IL), Anthony Weiner (D-NY), David Wu (D-OR), William Lacy Clay (D-MO), Mike Honda (D-CA), James Langevin (D-RI), Betty McCollum (D-MN), Diane Watson (D-CA), Tim Bishop (D-NY), Raúl Grijalva (D-AZ), Linda Sánchez (D-CA), Emanuel Cleaver (D-MO), Doris Matsui (D-CA), Gwen Moore (D-WI), Debbie Wasserman Schulz (D-FL), André Carson (D-IN), Kathy Castor (D-FL), Yvette Clarke (D-NY), Donna F. Edwards (D-MD), Keith Ellison (D-MN), Marcia L. Fudge (D-OH), Phil Hare (D-IL), Mazie K. Hirono (D-HI), Laura Richardson (D-CA), Joe Sestak (D-PA), Niki Tsongas (D-MA), Peter Welch (D-VT), Alan Grayson (D-FL), Jared Polis (D-CO), Mike Quigley (D-IL), and Gregorio Sablan (D-MP).