Australian Probe: Zygier Was Facing 20-year Sentence for 'Serious Espionage'

The Australian foreign ministry investigation confirms Ben Zygier was facing a 20-year prison sentence for a security-related crime and criticizes the Australian government's handling of the case.

Ben Zygier was facing 20 years in prison on “serious espionage” charges when he hanged himself in an Israeli prison, suggests a report published Wednesday morning by Australia’s Department of Foreign Affairs and Trade, which found fault with the Australian government’s handling of the case.

The report, based on an investigation by a special foreign ministry team led by Deputy Secretary Paul Grigson and commissioned by Foreign Minister Bob Carr, says Zygier – also known as Prisoner X and widely believed to have been an agent of Israel’s Mossad security service – was arrested in Israel on January 31, 2010 and was standing trial on security-related charges. Israel refused to provide Australia with more information, but if Zygier had been convicted of the charges, he would likely have received a 20-year prison sentence but “not the death penalty,” the report says.

Under Israeli criminal law, the only security-related crimes that carry a 20-year prison sentence fall under the heading of “serious espionage.” Such crimes require a “life sentence”; but in Israel, crimes for which life imprisonment is not mandatory are punishable by a maximum of 20 years in prison. After the Prisoner X affair was publicized, Zygier’s attorney said he was negotiating a plea bargain that would have reduced his client’s sentence to less than 20 years. The Australian foreign ministry’s report is the first confirmation of the nature of Zygier’s indictment.

The report also confirmed that Israel had previously investigated “Australians of Israeli background who may have been working for Israeli intelligence” and that the government was worried Israeli intelligence was misusing the passports of Israelis with Australian citizenship. The Australian government has no proof that Zygier, who also went by the surnames Alon, Allen and Burrows, was involved in any improper activity, says the report.

Israel informed Australian intelligence of Zygier’s arrest two weeks after the fact on Feb. 16, 2010, and the two countries’ remained in regular contact through intelligence channels, the report says.

The report finds the Australian foreign ministry failed to appropriately handle Zygier’s case because of its exceptional nature and misunderstandings between the foreign ministry and one of the intelligence agencies, which is referred to simply as “another agency.” It appears the agency in questions was the Australian Security Intelligence Organization, responsible for the state’s domestic intelligence.

Australia had no legal basis for getting involved in Zygier’s case, because he was “an employee of the Israeli government,” says the report. It describes a dispute between Israel and Australia regarding how much information Israel should provide through intelligence channels during the 10 months between Israel’s confirmation of Zygier’s arrest and his suicide on Dec. 15, 2010 and recommends Australia wait for the findings of Israel’s investigation before requesting additional details.

The report says Australia’s foreign ministry Secretary Dennis Richardson and First Assistant Secretary Greg Moriarty “were briefed separately and orally by another agency” regarding “the detention of Mr. Zygier on charges related to breaches of Israel’s national security.” It says no other officials were present at the briefings.

The Australian foreign ministry provided a copy of a report it received from “another agency” on March 3, 2010 to Australia’s Attorney-General’s Department a week later; and in the course of its work, the foreign ministry’s investigating team was made aware of two additional reports the other agency released on March 1 and May 13, 2010, respectively, the report says. Australia’s then Foreign Minister Stephen Smith was on the mailing lists for both reports and the first report was also sent to a handful of senior officials in the Prime Minister’s Office, Justice Ministry and intelligence community, the reports says, but there “is no record” that the foreign minister of the other agency were alerted to pay special attention to the reports.

Smith, whose term as foreign minister ended in September 2010, is quoted as telling the investigating team he had "no recollection of the Zygier case" and Richardson, the foreign ministry secretary, is quoted as saying, he had no “clear specific recollection of the details of the briefing on Feb. 24, 2010 that related to Mr. Zygier’s detention,” nor did he have any “recollection of the briefing by the Foreign Affairs Minister or any other minister on Mr. Zygier’s detention.” Richardson also did not recall “discussions in relation to the misuse of passports by Israel and about investigations into Australians of Israeli background who may have been working for Israeli intelligence,” the report says.

Moriarty, the foreign ministry's first assistant secretary during Zygier’s imprisonment, told the investigating team that “another agency had sought [assurances] from Israel on Feb. 16, 2010 regarding the treatment of Mr. Zygier in detention. These assurances included that legal representation had been made available to him, that his legal rights were being respected, that his family was aware of his arrest and detention and that he was in good health and not being mistreated.”

The report says the other agency that briefed Australian foreign ministry officials on Zygier’s case had understood the foreign ministry "would undertake its normal consular role" in assuring Zygier was afforded the “full legal rights of an Israeli citizens” and “treated humanely and fairly,” but Moriatry of the foreign ministry thought the other agency would handle these issues through intelligence channels.

The Australian government received assurances from Israel through intelligence channels on "Mr. Zygier’s treatment in detention in briefings on Feb. 24, 2010," the report says. "These assurances included that legal representation had been made available to him, that his legal rights were being respected, that his family was aware of his arrest and detention and that he was in good health and was not being mistreated."

But the report says Australia's foreign ministry received "no other information, and did not request information, about Mr. Zygier from any other source until it was notified on Dec. 17, 2010 of his death."

It also says the Foreign Ministry "received no requests for assistance from either Mr. Zygier’s family or legal representatives before December 2010, though "information from the Israeli government indicates that his family visited Mr. Zygier in prison on more than 50 occasions," and "information from the Israeli government indicates Mr. Zygier received regular visits from his legal representatives."

The repatriation of Zygier’s body to Australia was “routine and uneventful” and was handled “appropriately by the [Foreign Ministry] following notification of his death,” says the report.

The report finds Australian diplomats should have handled Zygier's case differently and changes should be made to foreign ministry procedures to prevent a similar occurrence in the future.

"With the benefit of hindsight, it would have been prudent to consult the Australian Head of Mission in Tel Aviv in February 2010 about the possibility of Australia being granted consular access to Mr. Zygier." the report says. "A clear understanding within government about consular responsibilities in the case would have generated greater confidence in the decision making around it."

Later, the report says, "The case raises questions about whether consular services should be provided by Australia to dual nationals when they are employed by the government of the country of their second nationality."

It also says, "Subject to a specific exemption from the Minister for Foreign Affairs, heads of mission should be informed of the circumstances of any Australian citizen detained for any reason within the country of their accreditation if that information is available to any Australian agency.”

But the investigating team concludes Australia cannot take any direct action regarding Zygier, saying in the report, "We await the outcome of the various inquiries underway or foreshadowed in Israel into the handling of the Zygier case by Israeli authorities before seeking further details from Israel, noting that the Australian government has no legal basis on which to conduct an inquiry in Israel into the circumstances of Mr. Zygier’s detention or death.”