The news reporting about the death of Prisoner X: Mr Zygier


I stalled writing about this subject for a few months. I was reluctant about it for a number of reasons – such as, not wanting to add to the media’s re-traumatization of the bereaved family. Plus, MSM news can sometimes have the effect of encouraging readers to “look over there,” circumventing adequate examination of domestic issues. However, public interest in discussing the occurrence of deaths in custody and in ventilating domestic shortfalls, strengthens the need to look at the issues involved, albeit from a slightly different perspective from the MSM.

An Australian citizen, born and raised in Melbourne, but who had dual citizenship, was remanded in custody while living overseas and authorities suppressed his identity. About six months later, but before he went to trial, he was found deceased in his isolation cell. Though he potentially faced a lengthy sentence, a representative of his legal team said that he had seemed rational the day before his death. He had also planned to submit a plea bargain to the court. The accusations against him – even after death – are still suppressed – and have been terribly skewed by heavy, pervasive speculation.  Alleged intelligence experts, who freely admit no knowledge of the matter whatsoever, are still being interviewed as if they do, by a mainstream pop-media hungry for a big story. We have seen in Australia in the last decade, that a lot of intelligence and surveillance by ‘experts’ relies on loose interpretations and speculation that don’t hold up before a court of law – but the news is not a court and comment on a dead man, and sentenced prisoners, cannot be defamatory under current Australian law.

The man was not repatriated back to Australia until he was dead. An inquest returned a finding of self-harm. The coroner found he had killed himself whilst held in that country’s highest security cell, which had 24/7 CCTV monitoring. The court heard that at the time of his death guards were not watching the monitors. It also heard that he was found in a place within the cell that was out of range of the CCTV cameras. {In contrast, in Australia, highest security supermax cells even have CCTV cameras that can monitor the activities over the toilets and the contents of the toilet bowl.} Australia’s former and present foreign ministers categorically deny all knowledge of the conditions of the man’s detention, leading up to him being found dead in his prison cell.

The reader could be forgiven in speculating that this death might have happened at Guantanamo Bay, or perhaps he was held in a third-world banana republic, or interrogated at a UN-condemned secret prison, or maybe he was a drug trafficker apprehended in a country with terminal drugs laws, but, you’d be wrong.

The clouds that hung over the man’s reputation and jeopardized his ties to his home, community and family, were secondarily generated by an Australian journalist, working as a foreign correspondent for an Australian publisher in the Middle East. The journalist’s story hinged on allegations from anonymous Australian intelligence sources, who claimed:

a)    That the man was a home-grown field/intelligence officer for a foreign government

b)    That the man had been involved in passport fraud (but for some reason, neither the anonymous source nor his agency had sought to prosecute him)

Journalist - ” I didn't believe that we'd proven that case. I believe that we - I had a couple of different sources for the - to confirm that they had - that these three people had changed their names and that they had used these travel documents to go to different - you know, these sensitive countries… but I couldn't be more certain than that. And as I've said, I found his denials to be very convincing.”

The Age’s reporters, Baker and McKenzie, chased corrupt government officials over the Securency scandal and the government charged them in a bid to discover the identity of the government source who leaked them information. However, in this case the journalist involved did several interviews after the prisoner’s death, and did not say he’d been forced to reveal his anonymous Australian intelligence source to any Australian commission of inquiry.
To recap –
·         The journo made very serious allegations regarding a national security matter that inferred the man was connected to a squad of assassins – which the journo, himself, has said he doubted
·         The anonymous sources’ allegations potentially jeopardized international relations, and
·         From the foreign ministers’ own remarks, if true, the government’s management of details about the prisoner reflect deep divisions and flaws in intelligence sharing and security between the domestic agencies that reported to those ministers.

These all seem like very strong reasons for an independent review of the activities of those anonymous sources. The context of the man’s custodial death offers an important lesson to the government and to the media, and an adequate judicial examination, or independent parliamentary inquiry of the matter, might prevent Australians losing their lives in custody overseas in the future.

Additionally, it seems a bit ironic that a journalist obtained and published this information, and other journos shared that information all around the world during the ensuing media frenzy, and Australia’s foreign ministers claim no knowledge of the circumstances that preceded the man’s death.

The story, however skewed it may have become, has been utterly unavoidable. It must be extremely difficult for those who knew the man and, exacerbating things, the story simply keeps on grabbing headlines, months after the news initially broke. The local practice among many of the readers of this blog is to identify the deceased by surname only and so, I will refer to the deceased, as Mr Zygier. From the press we can see Mr Zygier (34) was a qualified lawyer, a father, husband, and a valued family and community member and these details are important to note, to re-establish some of the ethical observances that should have been maintained. It is also important to know that in Australian law the dead cannot be defamed and it leads to some pretty wild mainstream news reporting on those who can’t defend themselves. In most cultures the passing of a loved one demands certain protocols are adhered to, and often this involves silence and introspection. The media has an obligation encapsulated within the AJA Code of Ethics to be sensitive to the bereaved as they interact with news. Clearly for some media workers this idea may be too broad, and defining it clearly enough so as to be able to apply the theory into their methods, is simply too difficult for them. The need for cultural sensitivity from the news media is amplified in this case because the community that the deceased belonged to is very close knit, and a stoic and dignified, decorous manner is a basic minimum requirement.
Almost invariably, widespread media coverage and commentary has the effect of objectifying any person who is the focus of that attention, and it is important – even when talking about broader issues involved, to be able to convey that the deceased was just like anyone else – someone’s friend and family member, and a remandee and individual who deserved the benefit of the doubt, a fair trial and humane treatment, in accordance with international legal obligations that are Australia’s responsibility to uphold.

Australian citizens in trouble overseas, such as David Hicks, Mamdou Habib and Julian Assange, have run into some very highly publicized problems with the shortfalls in protections inherent in their Australian citizenship, which should be inalienable. While the Australian foreign minister in every case has denied any government shortfalls in assistance to citizens in trouble overseas, evidence and hindsight would suggest that many find themselves in a diplomatic no-man’s-land, and criticisms have been levelled against past ministers for their weak performance and failing to question overseas authorities.

The facts of the case are not as much of a focus of this post, as the events on the periphery and those since Mr Zygier’s passing. My decision to write about it was prompted by a glib public remark by an Attorney General last week, which was not unlike a very controversial and potentially contemptuous comment that the PM once made about Assange, regardless of charges pending against him and the huge reach of her media appearances.
Asking for the government to be more accountable over this custodial death, or any that involve Australian prisoners - domestic, or overseas, requires politicians and government employees to be stripped of the PR spin that shields them via a formal, independent inquiry. In the Crikey link, Hyland observes that the case has been swamped with speculation, and this too must be stripped back to avoid any bias or colouring the facts.
The facts of the case – or perhaps, alleged facts, were only last week made available under freedom of information. Examining the actual death in custody in a dispassionate way with no other details before the reader, it sounds eerily similar to many that have occurred in Australia; and do, each year. Though reforms in Australia have been half-hearted, most Aussies still know about the RCIADIC and basically why it was conducted.
Australian inquests are not so different to Mr Zygier’s and, despite a lot of public scepticism and a gag-order, the Prisoner X findings may end up by being much more rigorously examined than most of ours – which do not attract any mainstream media attention, whatsoever, usually because their tales do not generate lucrative spy yarns. So, it may be difficult for Israel’s critics to accept that such incidents take place even in the bronzed, barbie & beach culture of Australia.
Here are some details about custodial deaths and inquests in Australia  – please be aware that each state’s protocols and practices vary {and should be considered as completely separate within this post, to the text regarding the custodial death of Mr Zygier}.

Australian prisoner records have previously been exposed in Australian courts for their omissions, subjectivity and inaccuracies. This has presented problems in inquests relating to custodial deaths. When deaths in custody occur, in most Australian states Coronial inquests are mandatory. In one particular state, where transparency is at a premium, accurate answers are undermined by making inquests so brief and perfunctory that the only finding the coroner can come to is one of self-harm, due to a shortage of evidence, which is collected by the same department’s employees. Apart from an oft-criticized lack of independence, custodial employees also have the time and access to taint crime scenes.  Custodial deaths are required to be treated as homicides before the law, though government behaviour regularly falls well short of that standard of scrupulous investigation. Any potential homicide offender(s) has time and access to tamper with evidence – so, clearly Australian inquests into custodial deaths are fraught with difficulty, and at times, obfuscation. Where commissions of inquiry might receive complaints of corruption of that process, not mentioning any particular state of course… the lack of accountability to the public by not holding public hearings or not reporting to Parliament, furthers transparency shortfalls. Short-staffing and under-budgeting of coroner’s offices also prevent proper investigation of deaths. Coronial legislation in some Australian states, means self-harm findings are immediately suppressed and can only be lifted upon application by a family member.

Australia’s mainstream media may have been Mr Zygier’s worst nightmare from their first contact. The witch-hunt, the still unsubstantiated claims by the anonymous source(s), and the recurrent need for him (before he was remanded) to deny media assertions, must have bothered him in the months before his death. These stories certainly could not have helped but to make him more physically and emotionally vulnerable - anyone who has been subject to a tabloid, pop-media feeding frenzy will be aware of their tendency to skew the truth in the pursuit of a story that will lift their dwindling circulations. Australian intelligence, security and police, also, knowingly wield the mainstream news media’s vulnerability like a weapon, and have done for decades, as documented by Wilfred Burchett and Walter Lippman, decades ago.

In what appears to be a concerning double-standard, police and most other public servants are charged if they leak information, but intelligence employees in this death appear to have done the same thing and have not faced any scrutiny – despite the outcomes of their actions for another Australian citizen and international relations. Intelligence or spy leads and the motives behind them are a gamble – they cannot be independently verified and most alternative sources to use for cross-checking those leads will have some form of angle or bias. So picking up leads like that can leave reporters prone to manipulation, exploitation, legal action, imprisonment or even just taking a knock to the credibility of their work.

“The source for these details ...former Middle East correspondent for The Age and The Sydney Morning Herald and a centralif perhaps unwittingplayer in (Mr) Zygiers sad story. What … has written and told interviewers about this affair raises the suspicion that he was used by ASIO in an operation targeting (Mr) Zygier and his assumed Israeli spy masters.”

*this is the dead link to the yarn about the two Aus Intell sources who approached JK in 2009

What occurred to the journo in Mr Zygier’s tale is worrying, and, as there can never be any measure of how common these approaches are, it is important for journalists to be alert to the many angles that these complex sources potentially could have, or how their claims may play out in the bigger picture. Journos have journo training - not spy training. Many journos would simply put these risky leads in the too hard basket for risk of being used. Intell leads have played some damaging roles to freedom and transparency since 9-11.

 “(Alon) Ben-David said he is certain that Australian diplomats knew about Zygier and that an Australian diplomat in Israel originally leaked (Mr) Zygier’s identity to journalist ...(named) in late 2009. He said secret agent identities are revealed every year, but it’s very uncommon for the media to be involved. “Usually foreign agencies work out a way to sort it out between them. Exposing someone like that to the press is very unusual and there is no point leaking something like that to the press. I don’t know why they did that.”

If the anonymous sources’ allegations about Mr Zygier were trustworthy or accurate (and clearly the publisher felt they were compelling enough to chase and 'out' the alleged spy, Mr Zygier), and,
if the anonymous sources felt the allegations were important enough to risk Mr Zygier's life by exposing his alleged spy job, then why was the Australian government not seeking Mr Zygier's prosecution and extradition for the crimes that those anonymous Australian intell sources alleged Zygier committed against his own nation? Were the claims not important enough or perhaps not credible enough? Were those anonymous sources too well connected, perhaps & why aren't these questions being asked by the Australian media if they are so hungry for a story?


Overseas intell sources independent of the particular domestic agency implicated for planting those details in the media, publicly maintain there are credibility problems with the story proffered to the Australian public via the media. One common complaint about Australia’s pop-media is its undisclosed lack of independence from government sources. The independent sources have suggested this is at play in the commentary and reporting of this case.

One of the key issues involved in the case from a media perspective is the difference in reporting practices between Australia and Israel. While Israel’s media and many functions of its government are tightly controlled from a security perspective, Australia’s mainstream news media has no regulation. The only regulation that exists at all is a group for publishers that has voluntary membership and is made up of less than independent parties, who might accept a small fine over a major breach of ethics that may have caused personal hardship or unequal treatment before the law.

There are many ethical problems presented in the news issues surrounding the case of Mr Zygier, cumulatively, so huge that they could cast a shadow over the Great Divide. Sadly, for this man's loved ones, the news media sensationalism and public criticisms about him will probably never be turned around as evidence is probably just too tainted by gossip.
Shadowy assertions can obscure key issues, look at the way they are utilized in election campaigns. If these anonymous allegations of spying, duplicity, violence and assassination were true, Australia really needs to review foreign intelligence agencies' recruitment of young citizens (where this alleged recruitment took place varies, according to which news company you are reading). One would imagine that any Australian government objection to such alleged choices should have occurred at that time. Moreover, sinister speculation and unofficial leaks should not render Australian citizens stateless. Similarly, they should not in practise, relinquish the State’s fundamental responsibilities to give a citizen appropriate and equal assistance. Access to help should be an inalienable right that consistently is provided irrespective of damning tabloid op-eds.
Moreover, some basic human rights aspects of international law appear to be absent in the case of Mr Zygier. These include the right to worship and pray that is embodied in several treaties Australia is a signatory to (the UN states it is currently trying to get Israel to re-engage in the Universal Periodic Review process that looks at human rights conditions in member countries, prisons included). Though worldwide, prisoners’ right to religious observance is not adhered to enough, in Supermax conditions, it takes on a far higher importance due to the stress-inducing conditions imposed by heightened isolation. This surely was an even greater requirement given the extreme conditions in which the ‘civil dead', Prisoner X, was detained. Israeli authorities outlined that in the section of the Ayalon Prison where he was detained, prisoners were *not permitted access to the synagogue (#NB this link contains sensitive, specific details that may be upsetting to readers). Their own accounts state the prisoner presented as increasingly distressed and depressed despite having seen a female secular counsellor 57 times during his Supermax detention, as is outlined in the inquest findings.
Two different ideas have been reported about Mr Zygier being upset before he died - one version states he was upset when he was caught and prevented from passing a note to his visitor. The other said he was upset by the news that the visitor gave him. His lawyer said the day before he was found deceased, he spoke in a rational way, and had made plans for a plea bargain. (#Updated - another version of the note scenario )


Although it isn’t outlined in these linked stories Supermax regulations are usually fairly rigid – though they may not be adhered to. They normally require regular visits from certain practitioners e.g. everyday, or every week, while they are detained in those conditions. This is because the isolated conditions, which have been condemned by the UN, have been documented as causing psychological duress, depression and other anxiety-related disorders. Judiciaries have made variations to sentences based on how supermax and isolation may affect the severity of a sentence. In view of the rights of prisoners the judiciary in Israel made a landmark ruling outlawing the privatization of prisons in 2009 as unconstitutional. So, it may be reasonable to speculate that the detention regimes may have also drawn tight regulation, which would then have been interpreted into practice by prison authorities.

Australian prisoners detained overseas are entitled to seek repatriation to Australian prisons to serve out their sentence, with the full assistance of the Australian consulate in the country in which they are held. This does not always equate to a positive result, as is visible in the case of some drug traffickers caught overseas in recent years.
There were suggestions published by the Australian media in March, that the Australian consular officials were reluctant to administer appropriate support to Prisoner X and also that it was they who had failed to brief Kevin Rudd. The current foreign minister has alleged he had no knowledge of the case. Former foreign minister, Kevin Rudd, was even in Israel the day before Mr Zygier died and he alleged news of his detention was not raised and that the Australian ambassador claimed no knowledge of Mr Zygier’s detention until hearing of his custodial death. Australian government officials have conceded that they did have anecdotal information regarding his detention and that they did inform department leaders and ministers.

The DFAT report shows ASIO spies found out about the arrest on February 16, 2010, and told senior DFAT officials Dennis Richardson, now head of the defence department, and Greg Moriarty, now ambassador to Indonesia, eight days later. Soon after, DFAT told then-foreign minister Mr Smith's chief of staff, Frances Adamson. But Ms Adamson - now ambassador to Beijing - told the investigation she doesn't recollect any such conversation. ASIO later distributed two ministerial submissions to senior officials in the offices of then-prime minister Mr Rudd and Mr Smith on March 1. A further submission went to Mr Smith's office on May 13.” ###

(#Update -14-5-13)Interestingly, another version of the story was recently disseminated by some of the less independent Israeli media outlets (which I haven't linked to), that suggested Mr Zygier's work had undermined an operation to repatriate 30 y/o remains. The story didn't get picked up by the mainstream or international media, rather unsurprisingly.

***via journalist Antony Loewenstein -FOI documents from Aus Embassy in Israel http://www.dpmc.gov.au/foi/ips/disclosure_logs/dpmc/docs/2012-13/foi-2013-034.pdf

***Findings relating to the death of Mr Zygier

Below are the inquest findings(courtesy of AIJAC), I have endeavoured to remove the medical details of Mr Zygier’s custodial death, and you can identify where I have made these deletions because they’re in red font. I have republished and linked to them in the hope that it might clear up some of the speculation that is present in reporting about the case. If you take issue with them appearing here, please email me.

The death of ...(Mr) Zygier - Excerpts of the report issued by the investigating magistrate (link from AIJAC)

Feb 26 2013

Readers following the extensive media coverage of the case of Australian-Israeli man ...(Mr) Zygier - who died in an Israeli prison in 2010 - will be aware that last week the Israeli courts allowed the publication of a redacted version of the report issued by the Rishon Lezion Magistrates court following the hearings held to investigate Zygier's death. While there have been media reports about the contents of the report, which was issued in December, below is a verbatim translation of key excerpts from the report.

Magistrates Court in Rishon Lezion
President of the court the Honorable Judge Daphne Blatman Kadrai


Applicant: the State of Israel
Re: The investigation into the death of the late John Doe
Respondent: The family of the late John Doe, Z"L

Present:
On behalf of the applicant attorney Ben Ari and Superintendent Alon Sraveni
On behalf of the respondent Attorney Ben Tzur and attorney Mazor
Wife of the deceased

Protocol


Decision

A. Introduction and background for discussions:
1. On 15.12.10 at 20:19 John Doe (hereinafter "John Doe" or "the deceased") was found dead in a holding cell in Ayalon Prison, after being arrested in connection with a criminal trial conducted against him in the District Court. The court case against the deceased as well as his alleged acts and the circumstances of his arrest were sheltered under gag orders.
The deceased was found hanged in the shower …

2. On 16.12.2012 the State filed, through the Israeli Police, Unit of Internal Crime Investigations, a request to investigate the cause of death of the deceased under section 19 of the Investigating Causes of Death Act from 5718 (Hebrew calendar) - 1958 (hereinafter: "the ICD act")
That same day, and on the basis of this request, I have ruled that the preliminary foundations for an investigation by the ICD Act have been established, and after being presented with the consent of the deceased's wife, I have ordered an autopsy. On the same day I have also ordered that further investigation will be conducted by the Israeli Police, and that the family of the deceased shall be invited [summoned] to further court meetings.
3. On 01/19/11 the deceased's family showed up at a court meeting and clarified that they also request the investigation into the cause of death and seek to take an active part in the proceedings. In my decision from the same day I have accepted the family's position that discussions will be held in the presence of representatives of the family, subject to decisions regarding confidentiality of claims [arguments] or documents, if any will be issued.
4. [...]
5. [...] Other [court] decisions were issued in regards to the right of the family of the deceased to receive the investigation file [material]. On 24/05/2011 I have decided that such a right exists and that the family will be entitled to receive the investigation material after it is completed. [...]
6. Upon completion of the investigation, the parties have raised arguments regarding the ICD order. All parties were represented and put forward their cases in an articulate and professional manner. The State through the Central District Prosecutor's representative, attorney Orly Ben-Ari Ginsberg, who accompanied the case, since the 25/04/2011 court decision, and the family of the deceased by attorneys Roy Blecher, Boaz Ben-Tsur and Moshe Mazor.

B. Nature of ICD procedure and its results

[...]

C. The medical cause of death of the deceased:
8. As stated, on 15.12.10 at 20:19 the deceased was found …

…This statement does not close the investigation, since the aim of the present investigation process [is to analyse] the cause of death in legal terms:
That is, whether the death was caused by offence and whether, then, the identity of the suspects in it can be established.

D. Offences investigated in this case:
10. The deceased lost his life in custody. The suspicion that was investigated is whether the death was caused by offence.
In accordance to my orders, first the question whether the death was caused by a deliberate act of another [person] was examined. Although the deceased was found hanging …, this does not exclude the theoretical option of active intervention by another person who intentionally brought his death in this way. The findings found at the scene - which proved the way the suicidal act was carried out …, the evidence about the position in which he was found…, the toxicology findings which disproved other suspicions, together with examination of prison cell's conditions [detention conditions] which rule out entry to the deceased cell from a location which is not covered by the cell's surveillance cameras and the examination of the cell camera's tapes which ruled out the entry of any other person to the cell - all ruled out the intervention of other person in causing the death of the deceased.
At the stage when the parties concluded their arguments, there was no longer dispute that it was a voluntary act of the deceased that caused his death by suicide.
11. Therefore, the offence that has been investigated in this proceeding and which should be examined to establish whether prima facie evidence was brought to prove it, is the offence of causing death by negligence as defined in section 304 of the Penal Code 5737 (Hebrew calendar)- 1977 (the "Penal Code"). The investigation focused, therefore, on examining the conduct of those in charge of the deceased's incarceration in Ayalon prison, detention procedures, protection [guarding] and supervision orders, their implementation, information and expectations of the Israeli Prison Services personnel.
12. [...]

E. Investigation material before me:
13. The investigation duty was assigned to the Unit of International Crime Investigations of the Police
[...]
14. After I studied all of these [the investigation material] including evidence collected at my order, I think that the investigation was comprehensive and thorough, carefully examining the full range of relevant issues, and establishes a proper and sufficient base to conclude the investigation into the cause of death of the deceased as required by law.
34. The duties of Israel Prison Service (IPS) personnel are many and difficult to perform. The obligations imposed on IPS personnel regarding the deceased were particularly difficult and complex, due to secrecy, compartmentalisation, different gaps in information and partial compartmentalisation of regulatory provisions themselves.
However, the special supervision provisions to preventing suicidal risk were given, and these were known to the persons responsible for monitoring and supervision. These supervision provisions were not carried out and in the "suicidal window of opportunities" created the risk for the worst happened - the suicide of the deceased.
The evidence shows that all IPS personnel who did their duty during the suicide incident worked wholeheartedly with the intention of carrying out their responsibilities, but the fact is that the supervisory tasks regarding the deceased according to the known instructions were not carried out.

Summary
35. The investigation of the unfortunate death of the deceased revealed prima facie evidence that various omissions in IPS conduct caused his death.
In these circumstances, I did not see as correct the applicant's position that seeks to close the ICD file without determining fault [liability].
In conclusion of the investigation I found that there is prima facie evidence against IPS personnel that caused death of the deceased.
However, I found that the issue of prosecution involves additional considerations of the strength of evidence and enforcement policies in offenses of causing death [by negligence]. Although I thought that liability of other individuals involved in the supervision over the deceased, including senior command level, could be examined, and that such examination should be performed in accordance with the general policy of the prosecuting authorities regarding the scope of the duty of knowledge and responsibility required in supervision over prisoners and detainees, ultimately, I think that at this point, it is appropriate that the applicant [the Israeli Attorney-General's office] reconsider its position regarding prosecution after it reviews the various statements and emphases listed in this decision. .... Given day, Vav in Tevet 5773 (Hebrew Calendar- Tsha"g), December 19, 2012 attended by the parties