Moments ago, the Justice Department appealed a federal district court ruling reinstating Air Force Major Margaret Witt after she was discharged from the military under Don’t Ask, Don’t Tell to Ninth Circuit Court of Appeals. But the government did not ask the court to stay the decision — suggesting that Witt will be able to serve in the Air Force through the duration of the appeal process.

Back in September, Judge Ronald B. Leighton of the United States District Court for the Western District of Washington found that the policy “violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution.” “She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable,” he concluded.

Today, the government filed a simple 3 page notice of appeal:

NOTICE IS HEREBY GIVEN that all Defendants hereby appeal to the United States Court of Appeals for the Ninth Circuit from the Judgment dated September 24, 2010 (Docket Nos. 166, 165), the Findings of Facts and Conclusions of Law dated September 24, 2010 (Docket No. 164), the Memorandum Opinion dated September 24, 2010 (Docket No. 163), as well as the Minute Order dated March 12, 2010 (Docket No. 70).

Interestingly, Leighton dismissed Witt’s case in 2006, only to be overruled by the 9th Circuit Court of Appeals in 2008. That decision established a new precedent (called the Witt standard) which prevented the military from discharging servicemembers under the policy in that circuit unless it could prove that it furthered military goals. The federal government did not appeal that decision and the Ninth Circuit sent the case back to Leighton and on September 24th, he ruled that the government did not meet that burden of proof.

The government’s decision not to request a stay from the Ninth Circuit is significant, however, because it could allow Witt back into the Air Force and save the government a trip to the Supreme Court. After all, a stay request to the very same court that established the Witt standard would have likely been denied, forcing the government to appeal the decision before Justice Kennedy, who decides appeals for the Ninth Circuit. From their, the outcome would have been very uncertain.

Witt has previously said that was “ready” to return back to her job as a nurse in the Air Force and predicted that her unit would welcome her with open arms. “The people in my unit has been behind me 100 percent. You know, I think the most recent statistics are something like 65,000 [gay or lesbian] people are serving every day. All we want to do is our job, so all I want to do is my job. And I think they’ll welcome me back for that,” she told MSNBC in September.

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Raw Story’s Sahil Kapur is reporting that Fox News is refusing to air an ad advocating for repeal of Don’t Ask, Don’t Tell. The 30-second spot, produced by the Palm Center, “includes testimony from military leaders of NATO allies arguing that lifting the ban on gay soldiers is a ‘non-event’ and does not diminish combat effectiveness.”

“I am surprised that Fox News would reject an ad featuring allied Generals, given that host Bill O’Reilly and guest contributor Liz Cheney have both expressed support for open gay service,” Palm Center Director Aaron Belkin said in a statement. “This is an important time for input from all sides on this issue, and I hope Fox will reconsider.” Watch the ad:

Fox might argue that the policy is controversial or too hot for television, but popular and political support for the policy has only increased over the last month. A CNN poll released last week found that 72 percent of Americans now want to end the policy, up from from 67 percent in September. Only 23 percent of Americans oppose repeal. Several moderate Republicans have also signaled that they would vote for repeal and Sen. Olympia Snow (R-ME) even called on Secretary of Defense Robert Gates to expedite the process.

The decision is particularly peculiar since the network refused a request by the America Issues Project to buy time on the network to broadcast an ad criticizing President Obama over his friendship with Bill Ayers during the 2008 presidential campaign and this summer, after multiple revisions, “agreed to run a Media Matters for America ad pointing out the cable network’s parent company’s $1 million donation to the Republican Governors Association.”

On the other hand, this isn’t the first time Fox News has refused to air a progressive ad. In July, the network rejected an ad by VoteVets, which encouraged a “clean energy climate plan” and before that turned down another spot advocating for ending America’s dependence on foreign oil because it deemed it “too confusing.” In December of 2007, the Fox also refused to air “an ad produced by the Center for Constitutional Rights that criticize[d] the Bush administration for ‘destroying the Constitution’ by the use of renditions, torture, and other tactics.”

In late September, Sen. John McCain (R-AZ) wrote a letter to Secretary of Defense Robert Gates expressing his concerns that the Pentagon’s Working Group review of Don’t Ask, Don’t Tell policy was operating under the condition that “the policy will be repealed” rather than studying if it should be changed. “I urge you and Admiral Mullen to modify the review and the survey instrument, or to conduct supplemental surveys, aimed at ensuring that the question of whether the DADT policy should be changed is answered,” McCain wrote in a letter dated September 28, 2010. [Read a copy of McCain's letter HERE]

Responding to the Senator’s request in a previously unreleased letter from October 25, 2010, Gates explained that the review was not a “referendum” on the policy, stressing, “I do not believe that military policy decisions — on this or any other subject — should be made through a referendum of Servicemembers.” He also emphasized that the final report would inform military leaders of the impacts of lifting the ban and help guide Congress in its decision making:

GATES: I instructed the working group to obtain the input of Servicemembers so that the Chairman of the Joint Chiefs of Staff and I, as well as the Service Chiefs, can more fully understand how a change in the DADT policy may impact unit cohesion, military readiness and effectiveness, recruiting and retention and family readiness. [...]

The Chairman and I fully support the approach and the efforts of the working group, as do the Service Chiefs. We are confident that the working group’s report will provide us with the information we need to appropriately advise the President, and, if requested to do so, to provide our fully informed views to Congress as it considers legislative action.

[Read a copy of Gates' letter HERE]

Unfortunately, Gates’ response did not assuage McCain, who reiterated his opposition to the study during a recent appearance on NBC’s Meet The Press. But the Senator is one of the only individual concerned about the scope of the report. Two of the four Service Chiefs — Navy chief Adm. Gary Roughead and Air Force Chief of Staff Norton Schwartz — are on public record as endorsing the comprehensive nature of the review. Marine Commandant Gen. James Amos — who has expressed concerns about the “risk” of repeal — also predicted that the Pentagon’s review of the policy would inform the military about how best to implement a repeal and allow the Marines Corp to change the policy “smartly.”

Similarly, during a hearing last week, Army Gen. Carter F. Ham — the co-chairman of the Pentagon’s Working Group on Don’t Ask, Don’t Tell — told Senate Armed Services Committee, “We believe this is probably, as far as I could tell, the most comprehensive assessment of a personnel policy matter that the Department of Defense has conducted.”

Yesterday, the National Journal reported that Navy chief Adm. Gary Roughead, who had previously sent a letter to Sen. John McCain (R-AZ) registering his support for Don’t Ask, Don’t Tell, struck a more conciliatory note towards the ban after seeing a draft copy of the Pentagon’s Working Group report. “I think the survey, without question, was the most expansive survey of the American military that’s ever been undertaken,” Roughead said during an interview Saturday aboard his plane. “I think the work that has been done is extraordinary.”

This morning, at a breakfast with a group of reporters called the Defense Writers Group, Air Force Chief of Staff Norton Schwartz, who also endorsed the policy to McCain, similarly distanced himself from McCain’s claims that the report would not sufficiently inform the armed forces on the consequences of repeal. According to Stars and Stripes reporter Leo Shane, Schwartz described the Working Group review as a “good and healthy” process:

The chiefs, who have all seen draft versions of the report, are not commenting on the results of the Working Group study until it is publicly released on Tuesday, November 30th.

During a press conference, yesterday, White House Press Secretary Robert Gibbs said the Chiefs were still engaged in ongoing discussions with Secretary of Defense Robert Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen about their positions, but hinted that President Obama would not necessarily need the support of the chiefs to go through with repeal.