This marriage can be saved.

Congress and the president appear to have irreconcilable differences over National Security Agency (NSA) wiretapping. Congress should stand up for its rights, but, in the end, it will be best to resolve this issue amicably by granting the president much of what he wants in return for better consultation.

The wiretapping controversy has set up a classic confrontation between the executive and legislative branches. On the one side is an administration aggressive in asserting executive power. On the other are defenders of Congress’s powers who think the president does not seek consultation and flouts laws passed through the regular legislative process.

This clash of visions was best described by political scientist Harvey Mansfield. From the congressional point of view, a president is an “errand boy,” merely carrying out the wishes of the Congress as expressed in laws. On the other hand, the president often views himself as a Machiavellian prince, sometimes acting extralegally for the good of the country, especially for great national-security purposes. Neither view can prevail all the time, but the pendulum may swing toward Congress or the president, depending on circumstances.

This brings us to the current controversy. The NSA wiretapping program violates the Foreign Intelligence Surveillance Act (FISA), but the president defends it based on a more general authorization of force and constitutional powers. Democrats and a number of Republicans have expressed their skepticism of the administration’s justifications, but the president is in a strong policy and political position on this issue, which means Congress can expect only small concessions.

The FISA system was designed when the president’s power was at its nadir. In the Watergate era, Congress tried to restrict the president’s role with such laws as the Budget Act and the War Powers Act, a law whose constitutionality has not been accepted by presidents of both parties. While the Patriot Act did modify provisions of FISA, the structure of the law itself may not completely comport with what is needed to fight the war on terror.

Many thoughtful moderates worry about the president’s lack of consultation but support the general goal of the president’s wiretapping program. Rep. Jane Harman (D-Calif.), the ranking member of the House Intelligence Committee, former Clinton National Security Council senior staffer Philip Bobbitt and columnist Stuart Taylor have all expressed this view.

Aside from the wisdom of the policy itself, President Bush believes rightly that the program is a winner politically. He trumpeted it in his State of the Union address and dared Democrats to oppose.

So what should Congress demand? First, consultation, and not just with select members but with the oversight of the intelligence committees. Second, Congress should work with President Bush to modify FISA, but it should not delude itself. There will have to be a good amount of wiretapping without FISA warrants because of the demands for speed and secrecy, changing technology and the mobility of our enemies.

Congress is an independent branch and should act as one, but the assertion of a branch’s prerogatives is situational. And we stand now in the middle of the war on terror, where a president is using strong tactics but ones that seem wholly intended to counter real national-security threats, not to punish personal enemies or settle grudges.

It is time for a modest assertion of congressional rights and the crafting of a deal with the president where Congress is involved in the oversight of NSA wiretapping without compromising its effectiveness.

Fortier is a research fellow at the American Enterprise Institute.