Who was Prisoner X?

IT IS a dark underworld of kidnapping and forged passports, of straw companies and assassinations; a place where young Australians with clean identities become invaluable assets to secretive spy agencies such as the Mossad. You cross a line when you enter this world. You travel to hostile countries under assumed identities and collect intelligence for foreign governments. You befriend and then recruit operatives, you take risks and, in some agencies, you may be required to kill.

IT IS a dark underworld of kidnapping and forged passports, of straw companies and assassinations; a place where young Australians with clean identities become invaluable assets to secretive spy agencies such as the Mossad. You cross a line when you enter this world. You travel to hostile countries under assumed identities and collect intelligence for foreign governments. You befriend and then recruit operatives, you take risks and, in some agencies, you may be required to kill.

It is now clear that at some point during his decade-long career spying for the Israeli secret service, Ben Zygier crossed a line. But how a Melbourne man with dual Australian-Israeli citizenship went from espionage to being held in secret in a maximum-security prison near Tel Aviv, where he ultimately met his death, is only now being slowly unravelled.

And the real circumstances of his death - described as asphyxiation or suicide by hanging in a "suicide-proof" cell under 24-hour video surveillance - may never be disclosed. But after two long years, which included 10 months of secret detention, a trial conducted far away from any public scrutiny, a court-ordered gag on any mention of his existence and a last-ditch attempt to suppress the story in the local media, Israel finally admitted a small part of the truth on Wednesday.

An Australian-Israeli citizen died in one of its prisons and its State Attorney's Office is evaluating whether his death was the result of negligence. It is only this week that his identity was revealed by the ABC's Foreign Correspondent program. Before that he was known simply as "Prisoner X".

Born in 1976, Zygier grew up in the quiet, comfortable Melbourne suburb of Malvern where he was a member of Hashomer Hatzair, a self-described Socialist-Zionist secular Jewish youth movement. His parents, Geoffrey and Louise Zygier, are well-known in Melbourne's close-knit Jewish community. His father is the executive director of the B'nai B'rith Anti-Defamation Commission and his mother previously worked for the law school at Monash University.

After studying law at Monash, Zygier emigrated to Israel in his early 20s where he lived in Kibbutz Gazit in the Galilee and served in the Israel Defence Force, Haaretz reported. In 2006 he married an Israeli woman, with whom he had two children, one believed to have been born just before he died on December 15, 2010.

Over the last decade of his life, Zygier returned to Australia several times - in 2002 he worked at the Australian law firm Deacons as a junior lawyer after completing his articles there, and in October 2009 he was studying for an MBA at Monash University, where he socialised with international students from Saudi Arabia and Iran, a source said.

It was during these trips to Australia that he legally changed his name and obtained new passports and other documents. It is believed he changed his identity three times over this period - to Ben Alon, Ben Allen and Benjamin Burroughs - piquing the interest of the Australian Security Intelligence Organisation.

According to two Australian intelligence sources who contacted Fairfax Media in October 2009, Zygier, with two other men, also dual Australian-Israeli citizens who had emigrated to Israel, were using the passports to travel to countries hostile to Israel - Iran, Syria and Lebanon - to spy for Israel. The nature of their espionage work has never been revealed, and phone calls to high-ranking members of Israel's security community this week shed no light on the matter. Nor could they shed any light on what Zygier may have done to warrant such harsh treatment by the Israelis, although an unnamed Australian security official told Fairfax Media on Thursday that Zygier may have been about to disclose information about Israeli intelligence operations, including the use of fraudulent Australian passports.

The three men were also tied together by their involvement in a communications company based in Europe that has a subsidiary in the Middle East, the Australian security sources said. Offering sophisticated satellite services and secure data management, it is believed by many in the security services to be a "straw company", which allows staff to gather intelligence in the countries it purports to be doing business with.

In January 2010, Fairfax Media's then Middle East correspondent, Jason Koutsoukis, flew to Europe to visit the company's offices. The office manager confirmed that one of the men - not Zygier - was employed there but was "unavailable". Soon after, the company's chief executive contacted Koutsoukis but he denied the man had ever been employed there and rejected the allegation that his company was being used to gather intelligence for Israel. According to its website, the company is still in operation and has recruitment ads for a software engineer and sales consultants on its home page.

By now a good deal of what the Australian intelligence sources had told Koutsoukis about Zygier and his colleagues had checked out, and it was time to speak to the men directly. Benji, as he was known to friends in Jerusalem, was emphatic in his denials when Fairfax Media confronted him in December 2009 with allegations that he was working for Mossad. "Who the f--- are you?" an incredulous Zygier asked Koutsoukis. "What is this total bullshit you are telling me?"

He said he had changed his name for personal reasons and appeared genuinely shocked that he could be under any kind of surveillance, Koutsoukis said. "I have never been to any of those countries that you say I have been to," Zygier said. "I am not involved in any kind of spying. That is ridiculous."

"He was at first angry, then exasperated that I wouldn't accept his denials," Koutsoukis said. "He told me he was like any other Australian who had made aliyah [decision to live in Israel] and was trying to make a life in Israel. He was very convincing."

Zygier's response was very different to the other man Koutsoukis managed to make contact with. The man, whom Fairfax Media cannot name, also denied that he had changed his name to obtain travel documents to travel through the Middle East. But unlike the handful of phone calls between Koutsoukis and Zygier, he cut off communication almost immediately. "This is a complete fantasy," said the man, who also held British citizenship and had been investigated by MI6 for applying for too many new British passports, the intelligence source revealed.

IT NOW appears Zygier was arrested by the Shin Bet, Israel's internal security service, in late February, soon after his last conversation with Koutsoukis but before the publication of the story in Fairfax newspapers that revealed ASIO was investigating three men.

He was taken to the isolation cell in Ayalon prison, in the city of Ramla near Tel Aviv, where he remained until his death nearly 10 months later. Zygier's arrest also came soon after the assassination of a senior Hamas operative, Mahmoud al-Mabhouh, in a hotel in Dubai on January 19, 2010. At first police believed the 49-year-old had suffered a heart attack, but they discovered that he had been poisoned and suddenly the death had all the hallmarks of an assassination. Dubai authorities claimed Mossad agents were behind Mabhouh's death and revealed that the men had used foreign passports, including three fake Australian passports, to enter Dubai.

The incident would have raised the stakes in ASIO's passport investigation, which began six months before the assassination. And although there was no suggestion at the time that Zygier or his two colleagues were implicated in the Dubai hit, there has been endless unsourced speculation this week in the Israeli media that there was a link between Zygier's arrest and the death of Mabhouh.

What is in no doubt is that the Dubai hit placed enormous pressure on Australia's diplomatic relationship with Israel - Australia expelled an Israeli diplomat and cut its intelligence sharing with Mossad over the affair. Then-foreign minister Stephen Smith said an investigation by Australian intelligence agencies found the fake passports were the work of a state intelligence agency, leading to the conclusion that "Israel was responsible for the counterfeiting and cloning of those passports".

"No government can tolerate the abuse of its passports, especially by a foreign government," Smith said on May 24, 2010. Just two months earlier, Britain expelled Mossad's London station chief over the use of forged UK passports in Mabhouh's assassination, while the French, Irish and German governments also investigated the fraudulent use of their passports in the affair.

But Israel's history of identity theft stretches even further back. In 2004 two men, Eli Cara and Uriel Zoshe Kelman, who the New Zealand government believed were Israeli intelligence operatives, were jailed for six months for stealing the identity of a disabled man to obtain a false New Zealand passport. Soon after, The New Zealand Herald reported, Australia quietly expelled an Israeli diplomat suspected of assisting the two agents.

FOR the 10 months Zygier was held in Ayalon prison in a cell called Wing 15 - purpose-built for Yigal Amir, the man who assassinated prime minister Yitzhak Rabin in 1995 - his jailers did not even know his name. Israel had gone into a comprehensive security lockdown over his arrest, insisting that the man in Wing 15 be referred to only as Prisoner X, or File 8434.

But such was the concern about the sensitivity of Zygier's case that Israel decided to go one step further. The government sought and was granted a gag order in March 2010 under the case name "Israel versus John Doe", as Foreign Correspondent revealed this week.

It banned any mention of Prisoner X, cell 15 in Ayalon prison, or anything about the prisoner being held there - even the mention of the gag order itself was prohibited. At the time, an Israeli journalist-turned-politician, Nitzan Horowitz, began raising concerns about the treatment of Prisoner X in a letter he sent to Israel's deputy attorney-general in 2010.

"Keeping a prisoner or detainee from contact with all others and from the outside world over a long period of time is fraught with many dangers," the MP from the left-wing Meretz party wrote in the letter, which he posted on his Facebook page this week.

"Secret arrests and trials are unacceptable in a free democratic country; they pose a tangible threat to the rule of law and deeply harm the public's trust in the legal system."

An official assured him all was under control. Instead it appears Zygier died in custody soon after Horowitz's letter was sent.

As the 34-year-old sat in his tiny cell in solitary confinement, a space just four by four metres with a bed, shower and toilet, under the gaze of 24-hour CCTV surveillance, the enormity of the trouble he was in must have been overwhelming. But attorney Avigdor Feldman, who believes he may have been one of the last people to see Zygier alive, told Walla News he did not detect any depression or anxiety when they met.

Hired by Zygier's wife to assess the potential for a plea bargain during negotiations with high-ranking figures in the State Attorney's Office, Feldman met the 34-year-old just two days before he died. He described him in a separate interview with Israel's Channel 10 news as "a balanced person . . . who was rationally weighing his legal options".

Zygier was charged with "grave crimes", Feldman told Channel 10, but said he consistently denied the allegations against him throughout his incarceration.

"His interrogators told him he could expect lengthy jail time and be ostracised from his family and the Jewish community," Feldman said. "There was no heart string they did not pull, and I suppose that ultimately brought about the tragic end."

So where was the Australian government when one of its citizens was being subject to a secret trial? After initially denying Australia had any knowledge that one of its citizens was detained in Israel, Foreign Minister Bob Carr was forced to admit that an official in the Department of Foreign Affairs and Trade had been aware of Zygier's detention.

The family had not asked for consular assistance, Carr said, and no one from the Australian embassy in Tel Aviv had visited Zygier in the prison just 20 kilometres away.

Back in Israel, after two days of intense pressure in which the prime minister's office pressured the media into not reporting the case to save the "embarrassment of a certain agency" and left-wing politicians used parliamentary privilege to raise the matter in the Knesset to bypass the gag order, the government relented and revealed some of the details.

"For security reasons the prisoner was held under an alias," a statement released by the Justice Ministry late on Wednesday read. It said that his family were immediately informed of his detention and he was represented in all proceedings by three lawyers.

"Proceedings regarding the prisoner were overseen by the most senior Justice Ministry officials and the prisoner's individual rights were maintained, according to law," the statement read. At no point in this process has Israel ever uttered the name Ben Zygier, or any of his other identities.

TO GET a taste of Israel's obsession with national security, one only needs to read its newspapers. The country is a "little villa in the jungle", an opinion writer penned this week, echoing the familiar theme that Israel is surrounded by hostile countries such as Iran and Syria and groups such as Hezbollah who want to destroy its very existence.

"There is a strong current of exceptionalism in Israel's long history on national security matters that is driven by the geopolitical threats it faces, which are obviously serious and real," said Ben Saul, a professor of international law at the University of Sydney who has worked on human rights cases in Israel.

"You know this is par for the course for the Israelis and if this guy was seemingly such a threat that he had to be kept in solitary confinement . . . it would be unsurprising if he had been killed by Israeli operatives," Saul said.

There was no evidence that this had occurred, Saul said, but to dispel those suspicions Israel should release the results of its investigation.

"In many ways [Israel] has got a free pass for a long time," Saul said. "It insists that everything it does is in line with international law, but that very much depends who you are - if you are a Palestinian your ability to access justice in the Israeli system and get a good result is severely limited," he said.

Israeli human rights attorney Michael Sfard, who represented and wrote a book with one of the country's most famous convicted spies, Marcus Klingberg, is horrified by the Zygier case. "Klingberg got pretty much the same treatment as this recent prisoner," Sfard said on Thursday. But Klingberg's case - in which he was accused (and he admitted under interrogation) of spying for the KGB and was sentenced to 20 years in prison - was believed to be one of the last in which an Israeli was held secretly, Sfard said.

For the first 10 years of his sentence he was held in solitary confinement in a maximum-security prison under a false name. After appeals from human rights groups on health grounds, he was allowed to leave jail and live under house arrest in 1998 and was finally released in 2003. He is now 94 years old, and lives in Paris with his daughter.

"I was certain that there were no more cases like that in Israel and it shocked me when I heard about this story," Sfard said. "What shocks me most is that the judges collaborated on the idea of having a secret trial. Every freshman law student . . . knows that the basic condition for a just trial is public scrutiny."

Sfard is also concerned by the discussion in Israel and Australia that assumes Zygier broke the law. "He was not convicted . . . it is very disturbing that there is this prima facie understanding that what the Mossad argues or claims is right," he said.

For now, the gag order issued on March 4, 2010, still stands, albeit with a reduced scope, while a family is left to wonder how their beloved son died alone in a suicide proof cell, entrusted to the care of the Israeli prison service.

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