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."

In seeking the restraining order yesterday, the Justice Department called into the proceedings a law which makes it a criminal offense for any person to "have unauthorized possession" of classified documents or to communicate, deliver or transmit such documents "to any person not entitled to receive them."

In addition, Jerry Friedham, a Defense Department spokesman, said Monday another law-making it a crime to publish information of a classified nature-may be involved.

The implication is that Times publisher Arthur Ochs Sulzberger and 21 other reporters, editors and officers of the Times named in the Justice Department suit are subject to penalties of ten years in prison or fines of up to $10,000 or both under either law.

"There is absolutely no way I can imagine these laws being applied in this case," one Law professor gasped. "The only possible application is one of aiding and abetting espionage, and that is simply absurd."

Attorney General John N. Mitchell told the Times Monday in a telegram that publication of the Pentagon material violates espionage laws.

Assistant U. S. Attorney Michael D. Hess, who filed the suit in New York, said the three installments of the series-published on Sunday, Monday and yesterday-have "seriously interfered with the conduct of our foreign relations."

One Law professor dismissed that contention as "silly."

Meanwhile, newspapers across the country have leaped to the Times's defense and Senate Majority Leader Mike Mansfield said yesterday the Senate will hold hearings on the Pentagon's study "regardless of what the decision of the court is."

One publisher of a major daily newspaper said last night that the Justice Department's suit "can only lead to the ultimate embarrassment of the government."

This view was repeated by professors at the Law School, who cited increasing judicial hostility to the war over the past year as another major factor working against the government.

Still, the professors were hesitant to anticipate Gurfein's decision. As one sympathetic to the Times and Judge Gurfein said, "When you get right down to it, if I were in his position, I would throw up my hands and go home."