WASHINGTON (CN) – The D.C. Circuit declined Friday to reinstate defamation claims against journalist James Risen brought by a man who claimed his technology could decipher anticipated al-Qaida attacks embedded in Al-Jazeera broadcasts.
Risen's 2014 book “Pay Any Price: Greed, Power and Endless War” devoted a chapter to unraveling Dennis Montgomery's claims, explaining how his former employees and the government concluded that the technology did not work as he claimed.
Montgomery is a former confidential informant to Arizona’s Maricopa County Sheriff’s office turned computer programmer who contracted with the CIA, Air Force and White House.
A three-judge panel of the D.C. Circuit agreed Friday with the district court’s finding that Montgomery failed to present sufficient evidence of the software's functionality that would have allowed him to prevail on a defamation claim.
"We need not hypothesize about what evidence of the software’s functionality might have been enough to defeat the motion for summary judgment, because Montgomery gives us virtually nothing to work with," U.S. Circuit Judge Cornelia Pillard wrote for the panel in an 11-page opinion.
One of Risen's attorneys, Laura Handman with Davis Wright, welcomed the ruling.
"We are very pleased that the D.C. Circuit agreed with the district court and affirmed the ruling," Handman said in an email.
Judge Pillard noted that Montgomery had violated a lower court order by refusing to produce the software. In a separate lawsuit against a former employer in Nevada, Montgomery likewise refused a similar court order, according to the ruling.
Montgomery's attorney, Larry Klayman of Freedom Watch, did not respond Friday to an email seeking comment on the ruling.
Risen's book describes how government officials and contractors benefited financially from the war on terror through waste, fraud and abuse while Congress threw cash at counterterrorism efforts.
The chapter Risen devoted to Montgomery says he's "the perfect case study" to show how the CIA fell for his ruse that he could decipher airline flight numbers and coordinates of planned al-Qaida attacks.
When Montgomery said his software determined that al-Qaida was going to target several international flights into the U.S. in 2003, then-CIA director George Tenet convinced President George W. Bush to ground a series of flights. The Bush administration - based on information derived from Al-Jazeera broadcasts - also considered shooting down a full commercial flight over the Atlantic.
Montgomery argued the lower court erred by holding that he must produce software, claiming it was classified.
But Pillard said he could have used other forms of evidence, or tried to facilitate production of the software, even if it was fully or partially classified.
"Montgomery failed to take any steps to join issue on whether classification impermissibly obstructed his ability to satisfy his burden," the opinion states.
Montgomery initially filed suit against Risen and his publishers - Houghton Harcourt Publishing Company and Houghton Mifflin Harcourt Company - in the Southern District of Florida, alleging that Risen had defamed him in the book and during promotional TV and radio interviews.
The case was later transferred to the District of Columbia, where U.S. District Judge Rudolph Contreras granted summary judgment to Risen.
Repeating other people's assertions, Risen’s book chapter describes Montgomery as a con man and his technology as a hoax.
Judge Contreras had concluded that the evidence Montgomery produced failed to show actual malice - the standard for defamation - on the part of Risen or his publishers, and that he provided virtually no evidence that any of Risen's factual statements about him were false.
The D.C. Circuit disposed of the case without oral arguments. Three dozen news organizations, publishing companies and first amendment groups filed amicus briefs on behalf of Risen and the publishers.
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