Atlanta — Three years ago, some 125,000 Cubans poured into Key West, Fla., crammed into boats arriving from Cuba in an exodus sanctioned by Cuba's Fidel Castro. Today, some 99 percent are living, with varying degrees of success, in freedom in the United States.
The other 1 percent are behind bars - most of them in the federal penitentiary here. They are the focus of a growing legal battle over how far the umbrella of constitutional rights extends over people whom the US doesn't want to live in this country.
In the latest skirmish, a federal judge has ordered more of a courtroom-like hearing for all detained Cubans, instead of the current ''informal interview'' a government official says is now used to determine whether there is sufficient reason to keep them in prison.
To reach the Cubans, you must walk past two tall guard towers, up a set of stone steps, through a metal detector, through two electrically operated metal gates, down a corridor to the heavy metal doors of the cellblocks, and through to the barred cells.
The cellblocks have five floors of group cells, equipped with bunk beds (usually four to a cell, though there have been as many as eight), a toilet, small lockers, and personal items.
For some 350 Cubans, it is the only home they have known in the US since arriving here three years ago. They are considered too dangerous or mentally unfit to release. The US plans to hold them indefinitely - or until Fidel Castro agrees to take them back.
The main evidence against them: their own word that they committed a crime in Cuba, plus their own actions in prison here. Others have been determined unfit on the basis of psychological tests. A federal official in contact with the prisoners says some are mildly retarded.
Another 750 have committed some offense during their freedom in the US. Most have been tried in court and then sent to the penitentiary here, sometimes after serving a sentence elsewhere. Others have been sent only on the basis of allegations. They will be given government hearings from time to time to determine if they can be released later.
One of the Cubans held here is Manuel Garcia Rodriguez.
''I don't understand, if my country won't accept me, why am I in prison?'' he asks during an interview in the federal prison here.
When he first arrived in the US, he says, he admitted to authorities that he had twice been in prison in Cuba - for not completing military service and for trying to flee to the US. He served eight years in prison in Cuba for this. Along with all other Cubans who admitted to serving time in prison in Cuba, he was locked up. Mr. Rodriguez was released earlier this year, after two years behind bars. Then after two months he was sent back here, accused of assaulting someone in a half-way house in Seattle.
''He pushed me; I pushed him. Nothing more,'' he says of the incident.
Atlanta lawyer Myron Kramer says he is ''bothered'' by the fact that Rodriquez was not given a trial. ''There as a good possibility he didn't do it (commit an assault),'' he says.
In most cases, the government now insists on trials before a Cuban is sent back here. But not so for parole revocations, or disruptions in half-way houses.
Garcia Rodriguez has a sponsor in Seattle. He displays two letters written on his behalf by people who identified themselves as church leaders in Seattle. He will be given a government hearing to determine if he can again be released.
Government attorneys and others warn that US District Court Judge Marvin Shoob's order to have expanded hearings will cost taxpayers millions of dollars more.
In requesting a stay of the order, the Justice Department Aug. 5 gave the court a list of reasons why the Cubans are being detained. They range from convictions of a few for murder to some 165 convicted of assault, and others for burglary, forgery, and other crimes. Other reasons include what are considered offenses in Cuba, such as running away, refusing military service in Castro's army, being a social misfit, or counterrevolutionary activities, as well as unproved charges of offenses in the US.
More formal-style hearings, giving the Cubans a chance to present evidence and cross examine witnesses, ''wouldn't free up many more people than are being released now,'' says a Justice Department official in Washington.
''There will probably be some who remain (in prison),'' says Mr. Kramer, who represents some of the Cubans. But others can safely be released, he says. Those needing treatment for alcoholic or psychiatric problems should be put in treatment facilities, he says, adding that this would be ''cheaper and more humane'' than keeping them in a maxium security prison.
Officials and attorneys involved with the detained Cubans see no end to the process of locking up Cubans in the federal prison here for new offenses committed in the US.
A State Department official says that he expects Cuba eventually to respond positively to repeated American requests to take back the unwanted Cubans. Recently the US stopped issuing visas to Cubans, pending Cuba's acceptance of the detainees.