Failure to intervene: why Canberra turned its back on Prisoner X

IN LATE 2010, then foreign minister Kevin Rudd paid a two-day visit to Israel. After back-to-back meetings including talks with Israeli counterpart Avigdor Lieberman and Prime Minister Benjamin Netanyahu, Rudd was driven to Ben Gurion airport just outside Tel Aviv for a 4.40pm flight to London on Tuesday, December 14.

By pure coincidence, he passed within a few kilometres of Ben Zygier, the Melbourne man-turned-Mossad agent now known as Prisoner X, who was being held in secrecy in Ayalon prison, just south of the airport. The following day, Zygier was found dead, apparently having hanged himself in the bathroom of his supposedly suicide-proof cell.

Rudd said this week through his spokesman that he had "no recollection" of ever being told of the Zygier case, either as prime minister or after he became foreign minister in September 2010.

"Mr Rudd is particularly concerned about this, given that Mr Zygier died in an Israeli prison on 15 December 2010," his spokesman said. "Mr Rudd's general practice as foreign minister was to raise consular cases of concern to DFAT in meetings with relevant ministers of foreign governments."

Whether an intervention by Rudd would have meant Ben Zygier would still be alive today will never be known. A report aired on Israel's Channel 2 this week claimed the 34-year-old father of two was deteriorating mentally and emotionally and barely eating in his last days.

On Wednesday, Foreign Minister Bob Carr put a rocket under his own department as he released the internal inquiry into the consular handling of Zygier's imprisonment, reigniting concern over the Prisoner X affair and raising questions as to why Canberra turned its back on the case.

The report details a communication bungle between branches of government and reveals that top diplomats including the highly respected public servant Dennis Richardson broke their own department's rules on providing consular care to Australian nationals by leaving the job to the spy agency ASIO.

It also raises the possibility that intelligence channels might have been given priority over the welfare of an Australian being held by a foreign government at a time when relations between Israel and Australia were strained because of Israel's misuse of Australian passports.

Owing to what Carr branded an "unsatisfactory lack of clarity" between ASIO and the Department of Foreign Affairs, nobody checked up on Israeli assurances that Zygier was OK. "I don't think that's satisfactory. I don't think it's remotely satisfactory," he said.

Moreover, the news of Zygier's arrest by Israeli authorities appears not to have rung alarm bells in Canberra on the security front, even though it came on the same day as revelations that Israel had used fake Australian passports in the assassination of Hamas commander Mahmoud al-Mabhouh in Dubai in January 2010.

While there is no evidence Zygier had any involvement in the Dubai operation, there is a strong likelihood that he was recruited by Mossad precisely because he was Australian and therefore could travel on a passport that bore the stamp of political neutrality in a region rife with hostility and suspicion.

"I've got to say there are unanswered questions about the use of Australian passports by dual nationals working for the government of their other country," Carr said. "If it transpires that Australian passports were used for security or intelligence gathering by Israel in this case, it's something to which we take the strongest opposition."

For still unspecified national security crimes, Zygier, who had moved from Melbourne to Israel in 2000, was arrested on January 31, 2010. According to Wednesday's internal inquiry, Mossad informed ASIO - which was investigating Zygier along with at least two other dual nationals it suspected of working for Israeli intelligence - about the arrest just over two weeks later.

Zygier had held three Australian passports in different names in the space of several years while living in Israel. He legally changed his surname twice in Victoria, first to Burrows and then to Allen. Amazingly, Zygier had not actually committed any crime in Australia - even by working for Mossad. (ASIO was investigating as an intelligence agency, not a law enforcement body.)

A further eight days later, ASIO verbally briefed Foreign Affairs boss Richardson and first assistant secretary Greg Moriarty. Richardson told the inquiry he had no "clear specific recollection" of the briefing.

By not telling the Australian embassy in Tel Aviv about the case, Richardson and Moriarty breached the department's rules, which state that "consular officials are charged with protecting Australians even if they hold another nationality".

Aside from a quick inquiry by Moriarty some weeks later, Australian officials "did not follow up on the assurances received about Mr Zygier" from the Israelis. They left the job to ASIO, which typically has no responsibility for consular care. ASIO, in turn, relied on Israeli assurances that Zygier was OK, even though Mossad had already broken an explicit deal with ASIO that it would not use Australian nationals for espionage.

Richardson and Moriarty also failed to directly inform then foreign minister Stephen Smith or Rudd, although key advisers in Smith and Rudd's offices appear to have been briefed, after which the flow of information quickly descends into a labyrinthine tunnel of who knew what when.

Only Attorney-General Robert McClelland says he remembers being briefed. Smith does not recall ever being told of the matter. In the defence of the Australian officials, the report points out that, according to Israeli authorities, Zygier had regular access to his lawyers and more than 50 visits from his family in his 10 months in jail. Neither he nor his family ever asked for consular assistance.

Plus, he was an Israeli citizen working for Mossad and had lived in Israel for 10 years. The foreign affairs officials apparently felt he should be regarded as an Israeli for the purposes of the case.

Carr, adopting a position that has dismayed some in DFAT, felt otherwise. "None of these above facts, while they complicate the case, absolves us from responsibility for attending to our consular duty," Carr said on Wednesday. "And this is where the department appears to have failed. There should have been more attention, more visits, and a follow-up on the guarantees that we received from the Israeli government."

This week it was revealed on Israel's Channel 2 that at least two prison workers who met Zygier during his final days told the Israeli Prison Service that the inmate posed a danger to himself.

One unnamed prison service worker said Zygier was a "very sensitive" man who "just made a huge mistake".

"He wanted to be a hero, he had a good conscience, and he couldn't deal with himself after it all happened," the worker said. "Zygier just knew too much."

It remains unclear what crime Zygier was charged with - it is subject to an Israeli gag order. The crime carried a penalty of up to 20 years' jail - which based on Israel's penal code suggests he committed "serious espionage" but without the deliberate intention to harm the country.

Although he had several visits from a social worker, they provided no comfort to him because he was not allowed to discuss what he had done, or what he was in jail for, Channel 2 reported.

"He wasn't allowed to speak to anyone about it. He felt that he had to share what he'd done, to talk to someone, and to find out what was going to happen to him," the prison official said. "I saw old pictures of him, when he was a full man. But he became just a pair of eyes. He was deteriorating. He barely ate. He said it made him sick, except for vegetables.

"He ate himself up from the inside. He took antidepressant pills . . . He was scared of what was going to happen to him when he'd get out."

Another Israeli media report quoted a prison guard saying that Zygier was not given the routine mental health screening that other prisoners got because his seclusion meant he was cut off from the daily workings of the jail.

However, one of Israel's most senior attorneys, Avigdor Feldman, who also visited Zygier in his final days, has previously said he saw "no signs that he was going to kill himself".

When contacted by Fairfax late on Thursday, Feldman refused to comment further. "I am not referring to it any more. I am fed up with it," he said, and put down the phone.

Professor David Kretzmer from Hebrew University in Jerusalem, a leading international law expert and a founding member of the Association for Civil Rights in Israel, said international human rights law allows for secrecy in cases where national security requires it.

"[But] the fact that he was kept in secret [did not] . . . excuse them from ensuring he had all the checks that are generally in place to examine the mental health of a prisoner and whether there are any suicidal tendencies."

Zygier's family remained silent this week. His father, Geoffrey Zygier, did not return calls. Friends of the family declined to comment. Even family friend Henry Greener, who previous spoke volubly to Fairfax and the ABC, refused to talk this week. He was reprimanded by the family for speaking before.

The little that does filter through is just a profound sense of sorrow and grief.

IN SPITE of Carr's proclamations of the unsatisfactoriness of it all, bureaucratic heads will not roll. Stephen Smith, now Defence Minister, has expressed full confidence in Dennis Richardson, who now heads the Defence Department. Foreign Affairs head Peter Varghese offered similarly robust support to Moriarty.

The Inspector-General of Intelligence and Security, Vivienne Thom, said she was satisfied that ASIO had not acted unlawfully and inappropriately and would take no further action.

Wednesday's report, despite its broad criticisms of the handling of the case, acknowledges this was an unusual situation and says the DFAT officials' judgment not to follow up on Zygier "was reasonable in the circumstances".

Perhaps most tellingly, the report adds that their decision "took into account concerns that a diplomatic approach may jeopardise the intelligence channel".

Did intelligence interests trump consular concerns for an Australian national, coming at a time when, as the report states, Israel's misuse of Australian passports was "a preoccupation of the national security community"?

The government's national security committee met on the night after news broke of the passports scandal and the top foreign affairs officials were told by ASIO of the Zygier case. The meeting would have included Rudd, Smith, McClelland and Richardson. Yet it is understood Zygier was not raised at this meeting.

Julie Bishop, the opposition's foreign affairs spokeswoman, says this "beggars belief". She finds it impossible to accept that Smith and Rudd were never told of the case.

"An Australian citizen was detained, in jail on charges relating to national security involving secret intelligence. It would have raised alarm bells," she said.

"We were dealing with a very sensitive issue between the Australian government and the Israeli government over the use of passports. Two issues came to a head at the same time and no one thought to ask the questions?

"It just does not add up."