In its coverage of the nomination of Gen. Michael V. Hayden to be CIA director, CNN made no mention of Hayden's testimony in 2002, in which he told Congress he did not have the authority to electronically eavesdrop on U.S. residents without a warrant, until Sen. Ron Wyden (D-OR) confronted Hayden about it at his May 18 nomination hearing. Wyden noted that in 2001 Hayden had been “told by the president's lawyers that you had authority to listen to Americans' phone calls.” As Media Matters for America noted, in 2002, Hayden testified before a joint congressional committee investigating the September 11 terrorist attacks that any citizen or legal resident of the United States targeted for surveillance by the National Security Agency (NSA) would be subject to the protection of the 000-.html">Foreign Intelligence Surveillance Act (FISA). At the time of Hayden's testimony, the NSA had already been authorized to conduct electronic surveillance on people in the United States without obtaining FISA warrants.

Media Matters has documented the media's widespread failure to cover Hayden's 2002 testimony. In its extensive coverage following Hayden's May 8 nomination, Media Matters could find no on-air reference by anyone on CNN to Hayden's 2002 congressional testimony. The cable channel's first reference came after Wyden said to Hayden: “On the wiretapping program in 2001, you were told by the president's lawyers that you had authority to listen to Americans' phone calls. But a year later, in 2002, you testified that you had no authority to listen to Americans' phone calls in the United States unless you had enough evidence for a warrant. But you have since admitted you were wiretapping Americans.”

Hayden responded, in part:

HAYDEN: Let me talk a little bit about the incidents that you brought up. The first one, I believe, is testimony in front of the combined HPSCI [House Permanent Select Committee on Intelligence] and SSCI [Senate Select Committee on Intelligence], the joint inquiry commission on the attacks of 9-11. And in my prepared remarks, I was trying to be very careful because we were talking not in closed session in front of the whole committee, but in front of the whole committee in totally open session.

I believe -- and I haven't looked at those remarks for a couple of months now -- I believe I began them by saying that I had been forthcoming in closed sessions with the committee.

Now, you may quibble that I've been forthcoming in closed sessions with some of my information with the leadership of the committee or with the entire committee, but that the language of the statute you referred to earlier does allow for limited briefings in certain circumstances. And I know there'll probably be questions on what are those legitimate circumstances.

If anyone in the U.S. government should be empathetic to the dilemma of someone in the position I was in, it should be members of this committee who have classified knowledge floating around their left and right lobes every time they go out to make a public statement.

You cannot avoid in your responsibilities talking about Iran, or talking about Iraq, or talking about terrorist surveillance. But you have classified knowledge. And your challenge and your responsibility is to give your audience at that moment the fullest, most complete, most honest rendition you can give them, knowing that you are prevented by law from telling them everything you know.

CNN congressional correspondent Andrea Koppel was the first to refer to Hayden's 2002 testimony at approximately 1:38 p.m. ET:

KOPPEL: This time around, pretty much as expected, we're seeing a pretty obvious divide between Democrats and Republicans, for the most part. In particular, you've got the chairman, Pat Roberts [R-KS], coming out in very strong defense of what this NSA surveillance program has been all about, really calling on the carpet those people who have leaked the stories to media in recent weeks and months. And you've had on the other side Democrats like Carl Levin [D-MI], who's the top Democrat on the committee, and Ron Wyden, who've been asking very pointed questions. It's actually gotten quite heated, questioning whether or not General Hayden himself had perhaps even misled deliberately the American people when he came before Congress, when he appeared at various public events around town. And there were some moments in which you could feel the tension in the room.