Law Faculty Waver On Possible Outcome

Harvard Law professors last night voiced uncertainty as to the possible outcome of the Justice Department's suit-filed yesterday in Federal District Court-seeking an injunction against the publication of a massive Pentagon study tracing American participation in the Vietnam war by the New York Times.

At the government's request. District Court Judge Murray I. Gurfein ordered the Times to halt temporarily publication of a series which collates the Pentagon's study of American involvement in Vietnam through the 1968 Tet offensive.

Gurfein said the temporary restraining order will be in effect until 1 p.m. Saturday, and he scheduled a hearing on the government's request for a preliminary injunction for Friday morning.

'Government Interests'

Gurfein said he granted the order "because in my opinion any temporary harm that may result from not publishing during the pendancy of the application for a preliminary injunction is far outweighed by the irreparable harm that could be done to the interests of the United States government if it should finally prevail."

However, he rejected a government request that the Times be required to surrender the Pentagon documents.

John W. Hushen. chief spokesman for the Justice Department, said last night that the FBI "investigates all allegations of Federal criminal violations and is doing so in this case."

The Times, in a curt statement, said simply that it "will comply with the restraining order... [and] will present its arguments against an injunction at the hearing scheduled for Friday."

Almost No Precedent

"There is almost no precedent whatsoever for this case," one Law School professor said last night. "There are very few cases in which the courts have enjoined publication of a newspaper, and none of them deal with the ongoing publication of specific articles-much less articles based on government documents."

Several professors agreed that an injunction could conceivably be issued, but none would speculate as to the likelihood of that happening.

"Probably the strongest possible injunction the government could obtain against a newspaper is one based on the question of national security." one professor said. "Still, it is a difficult allegation to prove, especially in this particular case."

The court must consider two points at Friday's hearing. One is whetheran injunction can in fact be issued on the grounds that the national security is in danger. The answer to this question, probably, is that one can be issued.

The second. and pivotal, question is that of the validity of the government's claim that the national security is endangered by the continued publication of the Times series.

"Here you have the question of to what extent the court has to take the government's word," one professor at the Law School said, "It's hard to say how close a look the court will take at the government's charges, but the closer Judge Gurfein looks, the less probable injunction becomes."

He cited the five to six-year time lag between materials contained in the articles and the date of publication as a major drawback in the government's claim to a violation of national security.

Another professor said it would be "a catastrophe" if the court does not closely consider the question of national security. "I am dubious about any claim about security on decisions made so long ago," he said. "It seems the Administration wants to have it both ways-Nixon can't tell us what he is planning in the interest of security and now he's saying that revealing decisions made five years ago is giving information to the enemy."